Roosevelt v. Schile

Patterson, J.: These are two appeals by the plaintiffs alone from orders of the Special Term, made in two actions, viz., Nos. 3 and 6. Those actions were brought for the foreclosure of mortgages; and at the same time, other actions, known as 1,2,4 and 5, were pending; and all of the six actions went to judgment. The mortgages foreclosed were upon premises on One Hundred and Twenty-fifth street and One Hundred and Twenty-sixth street in the city of New York and the situation of the several mortgages and their relation to the property can only be understood by reference to the following diagram : , Mortgage in action No. 1 was for $33,725, covering lots A and B. No. 2, for $8,287, covering lots A, B and C. No. 3, for $9,369;, covering lots A and B. No. 4, for $28,156, covering lots C and D. No. 5, for $11,258, covering lots A, C, D and E. No. 6, for $22,208, covering lots A, C, D and E. [527] Although each of these foreclosure suits went to judgment, sales were made only in actions Nos. 3 and 6. It will be seen at a glance that here are overlapping mortgages. At the sale the property was bid in by certain persons and it is sufficient now to say, as the record is presented, that the orders from which the appeals are taken by the plaintiffs alone sufficiently protect any rights" or possible claims of purchasers and, therefore, no further consideration is required of that matter. After the sale in actions Nos. 3 and 6 the guardian ad litem for some infant defendants made motions to set aside such sales and for a resale of the premises. Those motions were based upon the facts that, notwithstanding the judgments in foreclosure in the other actions, the plaintiffs only advertised sales under judgments in actions Nos. 3 and 6; that on the sale the plaintiffs first proceeded under the judgment recovered in action No. 3, which covered both parcels A and B, but only offered parcel B; and in so doing announced that the same was sold subject to the judgments recovered in actions 1 and 2, specifying the amounts and that all bids for that plot would be taken over and above the amount due in actions-1 and 2, making the price to be paid for the plot B the amount to be paid on the two prior judgments thereon, plus the amount of cash bid, notwithstanding that the judgments not only covered and were liens upon the parcels so offered, but upon two other parcels, A, and O, as well. The premises were knocked down by the auctioneer for the sum of $1,000. The terms of sale were afterwards signed, and a deed for the property delivered to the purchaser. Other facts appear with reference to the sale of property in action No. 6. After parcel B was sold in action No. 3, although the plaintiffs had not realized the full amount due in that action, they abandoned the sale under the judgment — that is to say, they did not sell parcel A, but proceeded to sell under the judgment in action No. 6, and created a situation which, with reference to the terms upon which the property was offered and bid in, is analogous to that upon the sale in action No. 3, namely, selling subject to judgments in other actions than the one in which the sale was made. This statement of the way in which the sales were conducted under the terms of sale indicates the way in which was brought about the result well stated by the court below, viz., that “ the manner in which the [528] property was sold made it quite impossible to tell for what any piece of property sold, or how much the whole property realized.” The matter is involved in so much confusion that if the guardian ad litem, had appealed we should have been much inclined to set aside the sale absolutely. But as it is, and as the orders are made on his 'motion, we think they should be affirmed in each case, with costs. It is not intended by this decision to prevent a proper application, on a showing' of additional facts, for further instructions as to a resale of the premises. - Van Brunt, P. J., and McLaughlin, J., concurred; Ingraham, J., concurred in result; Laughlin, J., dissented.