Gatchell ex rel. Worthington v. Presstman

Eccleston, J., delivered the opinion of this court. The act of 1833, ch. 181, requires that before a sale shall be made under its provisions, “the mortgagees, their executors or administrators, (or their assigns, if the mortgage claim shall have been assigned,)” shall file a statement of the amount remaining due upon the mortgage, verified by affidavit. At the time of this sale no such affidavit had been filed. For this defect in the proceedings the court below set aside the sale, and we think they were right in doing so. It has been said that the affidavit is made necessary for the protection of the mortgagor, and being designed for his benefit only he may dispense with it, and the purchaser will not be permitted to take any advantage of an omission to comply with this requirement of the law. It is true the mortgagee and his assignee did file affidavits before the final action of the court upon the sale, and the surviving mortgagor, McAllister, gave his consent to the ratification of the sale. When due notice, in the usual manner, has been given, affording an opportunity for objections to be made, and none are presented, from any quarter, if the sale is finally ratified, being then a judicial sale consummated by a court of competent jurisdiction in the premises, it might well be considered too late, then, to make such an objection as the one now relied upon. But to deny to a purchaser the right of objecting under the present circumstances, would subject him to the whim and caprice of a mortgagor. We suppose it cannot be successfully contended that a mortgagor may not object to a final ratification because no affidavit had been filed before the sale. If so, the purchaser w'ould be held bound by his bid, and to keep himself in readiness to comply, without any corresponding obligation on the other side, remaining all the [164] while in a perfect state of uncertainty up to the time of final ratification, whether the mortgagor would or would not agree to dispense with the affidavit and consent to the sale. This, in a commercial community, might very well subject a purchaser to much inconvenience and loss, by being obliged, in this state of uncertainty, to keep his funds unemployed, perhaps for many months, for the purpose of being prepared to meet a considerable cash payment at,, or shortly after, the confirmation, if that should be the final result. If, by holding such an objection a good one on the part of a purchaser, some delay and inconvenience might be imposed upon the mortgagee, it would fall where it should, because his neglect would be the cause of it. Between the sale and a ratification of it, the offer of an increased price, or any sudden and unexpected rise in the value pf the property, resulting from some new plan for a railroad or any other scheme, would afford a strong temptation for the mortgagor to withhold his assent; whilst a diminution in value would operate as an inducement for his agreeing tp the ratification.. Thus holding the purchaser to a bad bargain and denying him the advantage of a good one. The law gives a very summary remedy for the benefit of mortgagees, and it is imposing no hardship on them to require their compliance with the perfectly plain and obvious intention of the legislature, that before a sale the affidavit shall be filed. This view dispenses with the necessity of deciding the other questions which have been presented. Perceiving no error in the order setting aside and annulling the sale, it must be affirmed^ with costs, to the appellees, and the cause will be remanded for further proceedings. For which purpose a decree will be signed. Order affirmed and cause remanded.