Julia Minerva Rogers and Ella Coleman Rogers, Respondents, v. John H. Smith and Charles E. Smith, Appellants, Impleaded with John H. Derby and Others, Respondents

Julia Minerva Rogers and Ella Coleman Rogers, Respondents, v. John H. Smith and Charles E. Smith, Appellants, Impleaded with John H. Derby and Others, Respondents. Sale of land charged with legacies, for their payment—the inverse order of alienation rule applied, notwithstanding the inadequacy of the consideration for certain sales—laches. A testator devised .twenty-six acres of land to his son Robert S. Coleman and charged such land with the payment of certain legacies to his granddaughters. The devisee mortgaged the twenty-six acres and at various times thereafter conveyed portions thereof, aggregating twelve acres, procuring releases from the lien of the mortgage of all the land so sold. The mortgage was subsequently foreclosed and the remaining part of the twenty-six acres was sold, to a stranger in title, for §100 in excess of the amount of the judgment. In an action brought by the granddaughters of the testator, six years after the foreclosure sale, to foreclose the lien of their legacies on the twenty-six acres devised to Robert S. Coleman, the court directed that the twelve acres conveyed by Robert S. Coleman prior to the foreclosure of the mortgage should be first sold in the inverse order of their alienation, and that the fourteen acres sold under the judgment and foreclosure should be last sold. Meld, that, as it appeared that the fourteen acres sold under the judgment of foreclosure had been resold by the purchaser to parties who, so far as appeared, had paid full value for the property, the fact that the purchaser at the foreclosure sale paid an inadequate price for the fourteen acres did not- justify the court in changing the order of sale. Appeal by the defendants, John H. Smith and another, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 14th day of October, 1901, upon the decision of the court, rendered after a trial at the Saratoga Special Term, as-directs that the premises conveyed to the defendants John H. Smith and Charles E. Smith by deed bearing date the 29th of September, 1896, be first sold;- next the premises conveyed to the defendant Joseph Haynes by deed bearing date December 1, 1894; then the premises conveyed to the defendant Charles B. Gibson by deed of July 16, 1894 ; then the premises conveyed to the defendants John H. Smith and Charles E. Smith by deeds of October 14, 1893 ; then the premises conveyed to the defendants Howland and Derby by deed of March 19, 1892, and lastly the premises conveyed by Edgar Hull, referee, to Lyman H. LTorthup by. deed dated December 10, 1896. The action was brought to.foreclose and sell lands to pay legacies which yrere made a lien thereon by the testator. The allegations of the complaint are admitted, and show that one William Coleman, the grandfather of plaintiffs, died in 1881 leaving a will whereby he devised certain of his lands to his son Robert S. Coleman charged with the payment of two legacies of $500 each, payable to plaintiffs when they respectively arrived at the age of twenty-one years; that Julia Minerva Rogers, one of the plaintiffs, was twenty-one years of age July 16, 1896, and the other plaintiff arrived at that age March 19, 1898; that the legacies have never been paid and are a first lien upon some twenty-six acres of land so devised to Robert; that on'March 31, 1891, the devisee, Robert S. Coleman, executed to secure the payment of $2,000 and interest, a- mortgage covering these twenty-six acres so devised and one other piece of land to Glorina Sheldon, which mortgage was recorded April 1, 1891; that subsequently and prior to the foreclosure of this mortgage the devisee and mortgagor, Robert S. Coleman, conveyed by deed to various parties at various dates portions' of this twenty-six acres which were covered by the lien of the legacies and the lien of the mortgage, the aggregate of such conveyances embracing about twelve acres, and procured releases from the lien of the mortgage of all land so sold, ■ leaving only the lien of the legacies' outstanding. The portion of this twelve acres last conveyed is the piece of land deeded to defendants John H. Smith and Charles E. Smith. This was deeded September 29,1896, and at the same time the lien of the mortgage thereon was. released. The same year (1896) the mortgagee, Glorina Sheldon, foreclosed her mortgage and entered a decree of sale September 28, 1896, the day before the date of the deed from Robert to these defendants, and the remaining part of the twenty-six acres, being some fourteen acres, together with the land not covered by the lien of the legacies, was sold on December 10, 1896, for $1,147.94, being $100 in excess of the amount of the judgment, etc. The sale was to L. H. Nortlmp, a stranger to the title to any part of the premises. Subsequently, on April 16, 1897, Horthnp conveyed to John IT. Derby all of the said fourteen acres; on August 22, 1898, John H. Derby conveyed a part of this fourteen acres to Edward Usher, and on May 31, 1900, he conveyed another part of the fourteen acres to Archibald Steuart Derby. Two witnesses, defendant Smith and •his attorney, Mr. Paris, testified on the tidal that in their opinion at the time of the foreclosure sale the fourteen acres were worth $3,500; they sold for $747.94 ; also that'the other .piece then sold was worth $1,000; that piece sold for $400. This is the only evidence which was offered to discredit the sale. G. R. Paris and J. M. Whitman, for the appellants. Archibald S. Derby and Grenville M. Ingalsbe, for the respondents John H. Derby and others. [MAJORITY — Kellogg, J.] Kellogg, J. The appellant is aggrieved at the adoption by the trial court of the recognized rule in equity which directs a sale in the inverse order of alienation, and contends that there are peculiar equities which take this case out of the operation of that rule. The peculiar equities pointed out lie in the claim that the sale under the mortgage was for an inadequate price. It must be admitted that if the sale under the mortgage is not now to be attacked, discredited, and these defendants let in to hid thereon for the extinguishment of these legacies under this decree, then that sale operated as an alienation by the owner, Robert S. Coleman, at the date of the mortgage in 1891, an alienation prior to any sale of any portion of the twenty-six acres to any other grantee, and, therefore, by the rule to be last sold to pay the legacies. We do not doubt the power of the court in a prope.r case to adopt a different rule from that stated — the recognized rule ordinarily applied and understood by vendors and vendees of realty. But the cases in which a different rule-will be adopted must possess some peculiar features. It must be plain to the court that fairness to all parties in interest requires the adoption of a different rule. In the case before us it must be assumed that defendants John and Charles Smith knew when they purchased in 1896 of the existence of the lien of these legacies; that they also knew of the existence of the mortgage, and that the .remaining fourteen acres covered by the mortgage were all that stood between them and these legacies. They must also be presumed to have known that if these remaining fourteen acres were wholly absorbed in the payment of the mortgage their land must be first sold to pay the legacies. They were, therefore, interested in the foreclosure sale, interested to the extent of seeing that it was ■ sold for a fair price or for enough to pay both mortgage and legacies. On the other hand, bidders at that sale must be presumed to have bid with a knowledge of the equity rule that the land bid for and actually sold under that mortgage would be free of the legacies until the defendants’ land and all the rest of the twelve acres deeded by Robert S. Coleman, had been taken to pay the legacies. Nearly six years have elapsed since the foreclosure sale. The purchaser at that sale has sold. the property purchased, presumably for full consideration; his grantee again has sold portions of it, presumably for full consideration. Each of the present owners presumably purchased relying upon the equity rule and believing that no resort for payment of thé legacies could be' had to the property so foreclosed until these defendants’ property and all the balance of the twelve acres sold by Coleman since the date of the mortgage had been exhausted. We are now asked in view of the laches of these defendants. John and Charles Smith, in failing to see to it that the foreclosure sale brought an adequate sum, failing for six years to take any steps to set the sale aside, or to obtain relief ih any manner from the results of that sale, to reward them for their lack of diligence by subjecting innocent holders in good faith and for full value to a resale of their property; in other words, requiring them to pay these legacies. This does not strike us as equitable. The sole beneficiary of that foreclosure sale, if the sale was for less than actual value, was ¡Northup, the purchaser thereat. He cannot be reached in this proceeding. While it is undoubtedly a hardship on these defendants to require them to pay these legacies or lose their land, still the hardship is in a large measure one which with reasonable diligence they might have avoided. There is no view which can be taken of the present conditions which appeals with any force to the equity side of the court to change the well-understood equity rule in matters of this kind. The judgment of the learned trial court was right, and should be affirmed. Judgment unanimously affirmed, with costs.