Bowen v. Horgan , 259 N.Y. 267 ( 1932 )

The Trachson Building Corporation, on May 9th, 1929, purchased the premises sought to be partitioned herein, and paid to the referee appointed to make the sale a sum equal to ten per cent of its bid. On June 10th, 1929, the day appointed for the closing, the corporation declined to complete its bid, on the ground that title to the premises was defective. On January 15th, 1930, the Supreme Court, at Special Term, made an order directing the purchaser to take title and pay the balance of its bid. On appeal, the order was affirmed by this court on the 10th of February, 1931. Thereafter, on the day fixed for closing by the Special Term, and upon all subsequent days to which the closing was adjourned, the purchaser failed to complete the sale. On the 31st day of March, 1931, on the application of the plaintiff, the Special Term directed a resale of the premises, providing in its order that the purchaser should be charged with any deficiency arising therefrom. This order was not appealed from and has never been vacated or modified. Thereafter the purchaser, Trachson Building Corporation, assigned its bid and all its rights thereunder to Samuel Goldinger and Philip Kanter. These assignees, asserting their willingness to make payment in accordance with the terms of sale, soon after made an application to the Supreme Court at Special Term for an order directing and requiring the referee to complete the sale. On the 14th day of July, 1931, the Special Term made an order denying the application. From an order of the Appellate Division affirming such order this appeal is taken.

The bid made by the Trachson Building Corporation at the referee's sale and its acceptance by the referee constituted a contract for the sale of real estate to which the court was a party as vendor and the Trachson Corporation was a party as vendee. (People v. New York B-L. Banking Co.,189 N.Y. 233.) The corporation became the equitable owner of the property; the court, or those for whom it acted, retained the legal title, but for no other purpose than to secure the payment of the bid. (Matter of City of New York [Edgewater Road],138 App. Div. 203; 199 N.Y. 560.) The refusal of the corporation to complete its bid, and its long delay in tendering payment, might well have authorized the court to declare a rescission of the contract, in which event the rights of the corporation would have come to an end. This, however, was not the course pursued. On the contrary, an order was obtained for a resale, which expressly provided that, should the property sell for less than at the previous sale, the vendee, Trachson Corporation, should be required to pay the deficiency. Here was not rescission but enforcement; not abandonment of the contract but reliance thereupon. "In such case, the former sale is not set aside, but the land is resold as the land of the purchaser and at his risk." (Hurt v. Jones, 75 Va. 341.) Accordingly, if the premises bring more upon a resale than formerly, the vendee is entitled to the surplus. (Virginia Fire Marine Ins. Co. v. Cottrell,85 Va. 857; Blakeley v. Hughes, 140 Ky. 174.) Notwithstanding the long delays of the Trachson Corporation, when enforcement of its contract obligations was sought, necessarily recognition was given to its contract rights, for surely the contract could not be in force for one purpose and extinguished for some other purpose. Such rights as the Trachson Corporation had were transferred to these assignees, who, as the owners of an equitable estate, became entitled to enforce them as fully as their assignor would have been.

The case of Robertson v. Skelton (13 Beav. 91) is a case singularly in point. There Higinbotham purchased, at a judicial sale, a reversionary interest subject to a life tenancy. He failed to complete, and a resale was ordered, the order providing that Higinbotham should be charged for the deficiency. Before the resale the life tenant died, and the property became worth far more than the sum bid at the sale. On application to the court it was held that the purchaser might complete his purchase. "The Master of the Rolls thought that the purchaser, not having been discharged, was still entitled to complete his purchase. He ordered, that on payment into court of the purchase-money within four days, and upon payment of all the costs of his default, Higinbotham should be allowed the purchaser."

The order should be reversed, with costs, and the motion for leave to complete the terms of sale should be granted.

POUND, Ch. J., HUBBS and CROUCH, JJ., concur with LEHMAN, J.; KELLOGG, J., dissents in opinion in which CRANE and O'BRIEN, JJ., concur.

Order affirmed.