
    • HENRY HXRSCH v. WILLIAM S. LIVINGSTON, Executor, etc., and another, Respondents.
    
      Foreclosure sale—purchaser at—when relieved from bid.
    
    This is a motion by the purchaser of a leasehold interest in certain premises in the city of New York, sold under a judgment of foreclosure, to be relieved from his bid. The motion was made on the grounds, that the lease contained certain unusual covenants, which were unknown to him at the time of the sale, and that certain persons were not made parties to the action, who were, at the time of its commencement and of the judgment and sale, in possession of the premises as tenants. Held, that, as the tenants could not be forcibly dispossessed by any process which could be issued to enforce the judgment, the motion should be granted.
    Appeal by one Pangburn, the purchaser at a foreclosure sale, from an order denying a motion that the referee refund the deposit made by the purchaser pursuant to the terms of the sale, and that he be discharged from his bid.
    
      A. JR. McMahon, for the appellant.
    
      M. 8. Thompson, for the respondents.
   Daniels, J.:

The premises were sold under a foreclosure judgment, recovered by the plaintiff in this court, in an action in his favor against William S. Livingston and another. The interest sold in them, consisted of a term for years, created by a lease given by William B. Astor. After the appellant had bid off the property, subscribed the terms of sale, and paid ten per cent upon the purchase-price, he declined to take the title, on account of certain restraints imposed by the lease, and because, at the time when the action was commenced, there were tenants in possession of the demised premises, who, ever since then, continued therein, that were not made parties to the action, and were not bound by the judgment. These objections were verified by the affidavits of the appellant, and have not been denied on the part of the plaintiff. For that reason, they must be assumed to be well founded in fact. And, if they are, then the purchaser has shown that he could not, by any legal proceedings under the judgment, acquire possession of the premises sold him, if he had taken a conveyance of the title. For, as the tenants were in possession when the action was commenced, and since remained in possession, it is clear that they could not be forcibly dispossessed by any process which could be issued to enforce the judgment.

If such a sale would give the purchaser a title, it would fail to confer any right of possession against the tenants holding the property ; and that would deprive him of an important interest, which he was justified in expecting would be acquired by his purchase. If the tenants were willing to yield up their possession to the purchaser at the foreclosure sale, that ought to have been shown as a fact, by way of answer to his motion. As long as that was not attempted, it cannot be presumed for the purpose of compelling him to receive a title plainly defective. What he had the right to suppose he was to receive by means of the purchase, was not merely a title to the interest sold, but, beyond that, the power of securing immediate possession. If he could obtain the former, the latter did not exist, because of the defective proceedings in the foreclosure action; and that, under the law governing the obligations of purchasers at foreclosure sales in courts of equity, was sufficient to justify the appellant in his refusal to complete the purchase,

The order should be reversed with ten dollars costs, besides disbursements on the appeal; and an order should be entered, relieving the purchaser from his bid, and directing the deposit made by him to be refunded by the referee.

Davis, P. J., and Barrett, J., concurred.

Ordered accordingly. 
      
       Fuller v. Van Geesen, 4 Hill, 171.
     
      
       Moras v. Mowatt, 2 Paige, 586, 590; Veeder v. Fonda, 3 id., 94; Seaman v. Hicks, 8 id., 655.
     