Citation Numbers: 18 Abb. Pr. 3
Judges: Leonard
Filed Date: 3/15/1864
Status: Precedential
Modified Date: 1/12/2023
The questions in this case arise on exceptions to the report of a referee in respect to the disposition of the surplus moneys on the sale of mortgaged premises under a judgment of foreclosure.
These questions may all be considered as disposed of when the case was previously before the general term, except as to the effect of the release of the 9th-avenue premises by the judgment-creditor, Tan Wagner, to Platt.
The facts found by the referee show, that on the 13th June, 1857, when the execution was issued upon the judgment of Tan Wagner, and the premises on the 8th-avenue were sought to be subjected to the satisfaction thereof, an injunction might probably have been well maintained by Thomas Southard to restrain the sale of those premises, and that, either upon motion, or by an action, the said premises on the 8th-avenue would have been relieved from the operation of the judgment. Tan Wagner had, by his deed to Platt, deprived himself of the power of enforcing satisfaction of his judgment from the 9th-avenue premises. As between Southard and Tan Wagner the rules of a court of equity would have required the 9th-avenue premises to be first subjected to the satisfaction of the judgment before recourse could be had to the premises on the 8th-avenue.
It appears from the report of the referee that the 9th-avenue premises were fully adequate to the satisfaction of the judgment without resort to the premises on the 8th-avenue.
Southard, however, slept upon his rights. He permitted a sale of his 8th-avenue premises on execution issued upon the
I think it clear that Southard could not, after suffering Koon to obtain his deed from the sheriff and to dispossess him of the 8th-avenue premises, maintain an action of ejectment to recover possession from Koon.
Nor would he be able to obtain relief by motion; and I think, on the facts as found by the referee, a court of equity would consider him to be concluded, by his own silence and neglect, from any relief.
The rights of Southard are no better here on a claim to the surplus arising on a sale of the premises under foreclosure. He had suffered the title to the land to pass from him and himself to be dispossessed under an adverse claim of title. He thereby confessed the superior rights of Koon claiming under another and adverse title.
It is no answer that Van Wagner or Koon knew the nature of Southard’s title, and that he denied the validity of Van Wagner’s judgment as against his premises. He should not have suffered Koon to pay his money and obtain his deed by virtue of a sheriff’s sale under a judgment older than his own title, without asserting his own rights and demanding an adjudication thereof. Were any other rule to be adopted Koon will have been entrapped into a loss of the whole consideration paid by him at the sheriff’s sale.
The order of confirmation appealed from should be affirmed, with $10 costs of the appeal.
Barnard, J.—I concur.
Sutherland, J.—I concur.