McCotter v. . Jay

Hogeboom, J. There appear to be several insuperable difficulties in' the way of the plaintiff. 1. The foreclosure proceedings were entirely regular and free from fraud. They cannot, therefore, be disturbed or set aside without some legal reason. 2. Ho sufficient reason appears in the case. The plaintiff's want of knowledge of the time and place of the sale is entirely attributable to his own negligence. He was a party to the foreclosure suit, and was bound to due diligence in obtaining information of the 'Sale, in order to protect his rights. 3. He does.not allege that he was misled or legally surprised. . 4. If equitably entitled to relief, it was by way of motion addressed to the favor or discretion of the court, to open the biddings at the sale. He can claim no legal or absolute right, and if permitted- to come in at all, can be allowed to do .so only on terms. 5. These terms cannot properly be adjusted in this action. The complaint is not framed with such an aspect. The plaintiff has no legal and proper standing in court. He has no lien upon the premises, and no equitable interest therein. He shows no fraud, and cannot therefore ask to set aside the sale as a matter of right, even if as a mere guarantor of the debt he would be permitted to file a bill for such a purpose. He makes no title to relief, even upon motion, inasmuch as he is plainly guilty of laches, *82 and fails otherwise to present sufficient grounds for the equitable interference of the court. The judgment should be affirmed, with costs. All the .judges concurring, judgment affirmed.