Delaplaine v. Lawrence , 10 Paige Ch. 602 ( 1844 )

The Chancellor.

The neglect of the appellant to procure the transcript within the time prescribed in the 118th rule is satisfactorily explained, and was not owing to any fault on his part. The only question necessary to be considered, upon this application, therefore, is whether a purchaser who has bid off property at an administrator’s sale, and has complied with the terms of the sale on his part, can appeal to the chancellor from an erroneous decision of the surrogate setting aside such sale. I say an erroneous decision ; for, upon this application, this court must assupae that the appellant will be able to show, upon the hearing of the case, that the decision appealed from was erroneous, if such an appeal will lie in any case.

It is said the appellant did not appear as a party before the surrogate, upon the application to confirm the sale on the return of theadministrator, and that he cannot therefore appeal. The statute gives no directions as to the notification of any person interested in the estate, or in the confirmation of the sale, to attend the surrogate upon the return of the proceedings by the executor or administrator. But it is evident that the legislature contemplated that there might be litigation before the surrogate upon the question as to the propriety of a confirmation. And the affidavit of the appellant states that this administrator promised to endeavor to procure the confirmation of the sale; which he undoubtedly did endeavor to do, in good faith. If an appearance before the surrogate was necessary,-therefore, to enable the purchaser to appeal, which I think it was not, the appearance of the administrator in behalf of himself and the purchasers was sufficient.

In sales made by masters, under decrees and orders of this court, the purchasers who have bid off the property and paid their deposits in good faith, are considered as having acquired inchoate rights, which entitles them to a hearing upon the question whether the sales shall be set aside. And if the court errs, by setting aside the sale improperly, they have a right to carry the question by appeal to a higher tribunal. Perhaps in a proceeding of this kind, before the surrogate, where the purchaser wishes to have notice, so as to enable him to attend and litigate the question as to the confirmation, he should file a caveat and request that he may be summoned or notified of the time and place of hearing. But here, the administrator himself appeared, in behalf of all the purchasers, to obtain a confirmation of the sale. And the appellant states, that he and another purchaser whose right he subsequently acquired, complied with the conditions of the sale, by paying the auctioneer’s fees, and ten per cent upon the amount of their respective purchases.

If the Turtle Bay tract was properly sold in parcels, by the administrator, and not as one entire tract, in case any separate lots, or parcel of lots sold together, were bid off at the full value thereof, I am inclined to think that the purchase as to that part of the property should have been confirmed ; although other parcels of the premises were sold so far below their value that the aggregate amount of the purchases of the whole 109 lots, made by different persons, was less by ten per cent than the actual value of the entire tract. That, however, is a question which will more properly arise upon the consideration of the appeal upon its merits. And it is only alluded to here because, from the affidavit of the appellant, it appears that one of the respondents, and the only one who resisted the confirmation of the report, endeavored to persuade the appellant that the lots purchased by him had been bid off at prices which were beyond their actual value.

The statute, allowing appeals to this court from the orders, decrees, and sentences of surrogates, is very general in its terms. It declares that such appeals may be made in all cases except where provision has been made in the statute for appeals to circuit judges, and appeals from orders concerning the admeasurement of dower. (2 R. S. 610, § 104.) There can be no doubt, therefore, that the order of the surrogate vacating the sales of the whole 109 lots, which the decree itself declares to have been made by the administrator in a fair and legal manner, and directing the whole to be sold in one entire parcel, was an order from which any person aggrieved thereby had a right to appeal. And I think this purchaser had such an interest in the confirmation of the sale of the lots bid off by himself, at the sale, if not in those bid off by Peters, as to entitle him to appeal from that order.

The motion to dismiss the appeal is therefore denied; and the taxable costs of the appellant in resisting the application are to abide the decision upon the appeal.