James W. Latourette and Abigail La Forge, Respondents, v. Susan A. Latourette, Appellant, Impleaded with Abraham Latourette, Jr., and Others

James W. Latourette and Abigail La Forge, Respondents, v. Susan A. Latourette, Appellant, Impleaded with Abraham Latourette, Jr., and Others. Partition —practice where the purchaser fails to pay the ten per cent of the purchase price on the sale and no resale has been ordered. Where a purchaser upon a sale, had under an interlocutory judgment in an action for partition, neglects to pay ten per cent of the purchase price as required by the terms of the sale,'and there has been no resale, the proper practice is to have the report of sale confirmed, to enter final judgment under section 1577 of the Code of Civil Procedure, and to tender a deed to the purchaser. It is only by this method that he can be placed in entire default. There is no authority to make a tender of a deed until the confirmation of the report of sale and the entry of judgment. Appeal by the defendant, Susan A. Latourette, from an order of the Supreme Court, made at thé Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 27th day of November, 1897, denying the defendant’s motion for the confirmation of a report of sale and the entry of final judgment. Norbert Heinsheimer [Francis E. Parker with him on the brief], for the appellant. E. H. Benn [ Walter T. Elliott with him on the brief], for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: The purpose of this action was to partition certain premises in which Susan A. Latourette has a dower interest. The action has proceeded to the entry of an interlocutory judgment directing a sale of the premises. In pursuance of the judgment a sale was had under the direction of the sheriff, and the sheriff has made and filed his report of sale. It appears from this report that one J. W. Burbank was the purchaser of three parcels of the land; that the aggregate amount of his bid therefor was $17,150; that Burbank has subscribed to the written terms of sale, but has failed to pay ten per cent of the purchase price, as required thereby at the time the premises were struck off to him. Compliance with .the terms of sale has been extended by the sheriff, with the consent of the purchaser,. until the 23d.day,of April, 1897, since which time nothing has been done. By this motion a confirmation of the report of sale is' ■asked, arid, this being had, for the entry of final judgment thereon. We see no reason why the relief sought’ should not be granted; The fact that the..purchaser did not pay the ten per cent required by the terms of sale, upon the-acceptance -of his bid, furnishes no-reason why he should be released therefrom. The failure to. pay this sum authorized the sheriff to again offer the prernises for salé, and doubtless rendered the purchaser liable" for any loss that might be sustained by reason of his failure to comply with the terms, of his bid. But the purchaser is not discharged from the. obligation to ’ take and pay for the premises by such failure upon -his part. Section "1576 of the Code of Civil Procedure provides that immediately after completing the sale the officer making the same shall file his report.with the clerk. Section 1577 provides : .“.If the, sale is . confirmed by the court, a final'judgment must be entered, confirmring it accordingly, directing the officer making it to execute the proper conveyances,” etc. It is clear, from this provision," that the proper practice is to confirm the report,.enter the judgment and make tender of the deed to the purchaser. A resale of the premises not being .had, upon failure to pay the required ten per cent, such step’ is -quite proper in order to compel the purchaser to complete his purchase, or, by tender -of the deed; to place him in default if he refuses. It is not clear that any other course Would- be effectual in order to afford relief against the purchaser. He may come in now and- complete the purchase by payment and take the tendered deed. While -he is in default by not making the .preliminary payment, he is not cut off from a right to complete the purchase so long as no resale has been had. What it is his right to do it is also the.right of the parties to have done; and* as he was not put in default by a resale, he ought to be by tender of a deed and a demand upon him to completé the purchase: There is no authority to "make-tender of the ■ deed until the confirmation of the report ©f sale and the entry of judgment. The sheriff has no authority to negotiaté with .the purchaser or to extend his time in which, to pay-the purchase price" or any part of it, or to otherwise ’deal with him until after the entry of final judgment. It may be that the court, upon motion, might direct the purchaser to pay the ten per cent and order a resale if he refused compliance. But there would be no power in. the court upon such motion to make the purchaser do more ; he can only be placed in entire default by the confirmation of the report, the entry •of judgment, and the tender of the deed. If he then refuses to •complete the purchase, the party has lost none of his remedy and the court none'of its power to compel him to that end. This case presents the anomaly of a party, entitled to have the purchaser complete liis purchase, resisted in her right to a lawful remedy, by a party also interested in arriving at the same result, while the purchaser himself is not heard, makes no application, and does not ask to be relieved. It is clear that the moving party is entitled to have the security of the purchaser for the amount of the purchase price, whether such security be great or small, and she should not be compelled to release her Tight in this regard by anything short of the purchaser’s fulfillment or his complete default; and this requires the confirmation of the report of sale, the entry of the judgment, and the subsequent steps thereunder. The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted. All concurred. Order reversed, with ten dollars costs and disbursements, and motion granted. •