Opinion
June Term, 1867
Lyman Tremain, for the appellant.
Wm. F. Cogswell, for the respondents.
The appellant acquired his title to the mortgaged premises under a judgment, which directed that the surplus moneys should be paid into court. He took the benefit of the purchase, but by a secret and collusive arrangement with the sheriff, he retained the surplus, amounting to $6,362.55, with interest from the 14th of July, 1849. That officer had no authority to remit the payment of any portion of the price, or to accept a note to himself, in extinguishment of the appellant's obligation. By becoming the purchaser, Alrick Hubbell, though not named as a party in the action, submitted himself to the jurisdiction of the court in the foreclosure suit; and the appropriate remedy, to compel him to pay over the surplus money, was the motion made by the respondents. ( Requa v. Rea, 2 Paige, 339; Brasher v. Cortland, 2 Johns. Ch., 505; Casamajor v. Strode, 1 Simons Stuart, 381; Lansdown v. Elderton, 14 Vesey, 512.)
It was urged with great force and ability, on the argument, that the obligation to complete the purchase was extinguished by the lapse of time. In this view we cannot concur. The appellant retains the benefit of the title he acquired through the judgment of foreclosure; and nothing has occurred since, which gives him a better right, now than then, to disregard the directions of the tribunal by which that judgment was pronounced. For all the purposes of this proceeding, the action is to be deemed still pending; and there is no statute of limitations, ousting the court of jurisdiction to enforce the execution of its decree. It is no answer to the motion, that such a defense might have prevailed, if the parties aggrieved had sought a concurrent remedy, by action against the sheriff for breach of duty. The respondents have been guilty of no laches. The right to the surplus moneys was presumptively in the assignees, until the assignment was adjudged to be fraudulent; and when its invalidity was legally ascertained, the respondents promptly resorted to their motion. It is urged, with much force, that Cazet and Astoin were not even then in a position to move, as their action was still undetermined; but this furnishes no ground for reversing the order, as other parties united in the application, who were entitled to the precise relief demanded.
We think there is no force in the objection, that the motion was made without first bringing in, as parties, the representatives of Alfred Hubbell, who was one of the defendants in the foreclosure suit. Their substitution was unnecessary for the purpose of compelling the appellant to complete his purchase by bringing the money into court, and their rights are unaffected by the order, which simply secures the fund by placing it in the custody of the law, without awarding it to either of the claimants. ( Lynde v. O'Donnell, 21 How., 36-39; Brown v. Andrews, 1 Barb., 227; McGregor v. Comstock, 28 N.Y., 238; Hancock v. Hancock, 22 id., 570.)
By mistake in entitling the cause, Alrick Hubbell is named in the motion papers as one of the defendants in the foreclosure suit. The error is one which we are bound to disregard, as it prejudiced neither of the parties, and affected none of their substantial rights. (Code, §§ 173, 176; Bank of Havana v. Magee, 20 N.Y., 360.)
We think the other points urged in support of the appeal untenable; but as the rights of the parties claiming interests in the fund are not yet finally determined, the order should be modified by allowing the appellant, if he should so elect, to give a bond to the people, with two sufficient sureties, to be approved by a justice of the Supreme Court, and to be filed in the office of the clerk of the county of Monroe, securing the payment of the amount named in the order, with interest, as that court may direct, and the observance of such orders as may be made from time to time in the premises.
With this modification, the order of the Supreme Court should be affirmed.
All the judges concurring, except DAVIES, Ch. J., and BOCKES, J., who expressed no opinion,
Ordered accordingly.