Hogan v. Hoyt et al.

Hogan v. Hoyt et al. Amendment.—Irregularity. A judgment of foreclosure, and report of sale, are amendable, nunc pro time, under § 173 of the Code. A foreclosure-sale will not be set aside, at the instance of the mortgagor, for a technical irregularity in which he acquiesced at the time of sale. Appeal from the general term of the Supreme Court, in the fifth district, where an order amending a judgment of foreclosure, and the return of the sheriff, had heen affirmed, as also an order denying a motion to vacate the proceedings. It appeared by the moving papers, that in December 1850, the defendant, Azor Hoyt, executed a mortgage to the plaintiff for $4000, covering the premises known as No. 239 West Twenty-third street, in the city of New York. In August 1851, the mortgagor conveyed the premises to one Dresser. In 1854, a foreclosure-suit was commenced against Hoyt and Dresser, which resulted in a judgment of foreclosure, in January 1855, authorizing a sale of the premises by Livingston K. Miller, as referee. In March 1855, at the request of the defendant Dresser, Antonio M. Mora and Jose A. Mora purchased the judgment in this action, and another foreclosure-judgment in favor of Charles A. Davison, and in August 1856, they caused the premises to be advertised for sale, by James C. Willett, who was then sheriff of New York. He sold them, pursuant to this advertisement, in September 1856, and they were purchased by the Moras, to whom, in October following, he delivered the usual sheriff’s deed. In February 1859, the Moras moved for the correction of certain mistakes connected with the sheriff’s sale, and the defendant Dresser moved to vacate the proceed-on vai'i°us *grounds, one of which was the inadequacy of price at the sale. The report of the sheriff was amended and confirmed, and the motion of Dresser was denied; and both orders were affirmed, on appeal to thé general term. The Moras entered into possession of the premises, which they afterward sold to other parties, and through divers mesne conveyances, the title was acquired by Fausto Mora, the present respondent. In 1864, the latter contracted to sell the property to another party, who objected to receiving a conveyance, on discovery of the fact, that the sale made by the sheriff was directed, in the decree, to be made by a referee. To obviate this objection, Fausto Mora moved for an amendment of the judgment of foreclosure, by substituting for the name of Livingston K. Miller, referee, that of the sheriff of the city and county of New York, by whom the sale was actually made. Dresser opposed the motion, mainly on the same grounds on which his previous motion had been denied. The motion to amend was granted at special term, and the order having been affirmed by the general term, Dresser took this appeal. Reynolds, for the appellant. Allen and Brunt, for Fausto Mora, the respondent. [MAJORITY — Porter, J.] Porter, J. The appellant is mistaken in supposing that the judgment of foreclosure and the report of sale, are not “ proceedings,” in the court below. The authority of that court to amend them mine pro tunc is clear. (Code, §173.) The question was one addressed to the discretion, of tire supreme court, and no facts appear in the papers to invest an appellate tribunal with authority to reverse its decision. We are bound to assume that the sale was fairly made; for that was settled in the court below, by an adjudication at the general term, in which the appellant acquiesced. The question, whether the sale should be made by the sheriff or a referee, was one which rested in judicial discretion. The legal pro sumption is, that it was honest and fair; as it was *made, in either case, by a responsible officer, under the immediate supervision of the court, by which it was approved on a hearing of all the parties. There is no force in the objections, that the complainant, Hogan, is dead; that the action has not been revived; and that Fausto Mora, the purchaser, was not a party to the suit in which the motion was made. We had occasion to consider these questions in the case of Sawyer v. Hubbell, decided at the last term (36 N. Y. 677), and our conclusions were in accordance with the views now maintained by the respondent. The appellant, who acquiesced in a sale by the sheriff, could take no more effectual means to quiet the fears of a purchaser ; and he is not in a position now, to avail himself of an afterthought, by opposing technical cavils to the rights of a vendee, who bought in perfect good faith. The order should be affirmed, with costs, as upon a special motion. Order affirmed.