BUTTRON v. TIBBITTS

BUTTRON v. TIBBITTS. N. Y. Supreme Court, Third Department; Albany Special Term, May, 1881. PuBcnAsirra Subject to Ibcumbbabces at Judicial Sales. One who purchases at a judicial sale subject to all incumbrances, is not entitled to have the surplus money applied to the payment of a recorded mortgage, the existence of which was unknown to all the parties because of an error made in indexing it. Motion to confirm referee’s report of a sale in partition, “subject to all taxes, assessments, and other incumbrances.” A search was made, prior to the sale, by the county clerk, but owing to error in the index in writing Jacob instead of James Townsend, a small mortgage was not discovered. The referee, the purchaser, and all parties supposed there was no such incumbrance. It being subsequently discovered, the purchaser opposed the motion to confirm the sale, and asked that the balance in the referee’s hands be applied to pay this mortgage. E. DC Donan, for plaintiff. Isaac Lawson, for purchaser. As to proper terms of sale, see Code Civ. Pro. § 1676; Abbott's Forms, Supplement, p. 471, No. 696, and notes; Koch v. Purcell, 45 Super. Ct. (J. & S.) 162. That an announcement that the sale is subject to another mortgage, will not create an equity in favor of the owner of other land covered also by such mortgage,—see Mutual Life Ins. Co. v. Boughrum. 24 N. J. Eg. 44. [MAJORITY — Learned, J.] Learned, J. The premises were, by the terms of sale, sold subject to taxes, assessments and incumbrances. There is, therefore, no reason why the loss should fall on the owners rather than on the purchaser. They are not to blame any more than she is, nor as much; for she knew the terms and purchased at her own risk. Furthermore, the purchaser does not even now ask to be relieved from her bargain on the ground of a mutual mistake, but she wishes the court to make a new bargain between the parties. This ought not to be done. Therefore the plaintiff’s motion should be granted.- Ordered accordingly.