
    The Farmers’ Loan & Trust Company, App’lt, v. The Bankers & Merchants’ Telegraph Company et al, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    1. Foreclosure sale—When not set aside—Judgment—Referee.
    Where a judgment in foreclosure, after reciting in the aggregate the amount due, as stated in the affidavit upon application, upon certain outstanding bonds secured by mortgage and coupons, directs the referee, among other things, to ascertain and report the amount due upon them, and directs a sale of the mortgaged premises, unless the amount due, as stated in the recital, together with interest and costs, are paid before the sale, in the absence of an express order, a sale before report of amount due is valid.
    ¡3. Same—Authority of referee.
    The referee is impliedly authorized to do any act necessary to the performance of an express order in such judgment.
    8. Same—Delivery of deed—Balance due.
    The delivery of the deed upon receipt of the balance of purchase price in securities authorized by; the judgment is valid, ample indemnity for the payment of a balance which might arise from an insufficiency of such securities being given.
    
      4. Same.
    Power of the court to vacate a sale is discretionary, and pendency of a suit to enforce an agreement to reorganize furnishes no absolute ground for setting aside a sale.
    Appeal from an order of supreme court, general term, first department, affirming an order of the special term denying a petition to set aside a sale made under a decree of foreclosure.
    
      Wheeler H. Pedcham, for opp It; Roger Foster and Robert Q. Ingersoll, for resp’ts.
    
      
       See 26 N. Y. State Rep., 161.
    
   Earl, J.

There has been a bewildering maze of legal proceedings affecting the Bankers’ & Merchants’ Telegraph Company and its property, and it is quite possible that wrong and injustice has resulted to some of the creditors of the company. The matters have, in many forms, been before the courts below by actions, receiverships, references, reports, petitions, motions and orders, and it would seem as if no real grievance should now remain unredressed.

We certainly can perceive no method, according to the settled practice of this court, for administering relief to the appellant upon this appeal.

The judgment of foreclosure is unassailed, and from it we must set out upon an examination of the matters submitted for our consideration. It recites that it appeared from an affidavit that the bonds secured by the mortgage foreclosed and then outstanding amounted to $7,102,000, and it ordered that it be referred to a referee named “ to ascertain and report the principal sums due and unpaid on such bonds as may be ascertained and reported by such referee to be secured by said mortgage and the names of the respective persons holding any, and what title to the same, and that the said referee shall also ascertain and report which of the coupons issued with any bonds so certified by the plaintiff are outstanding and entitled to the security of the said mortgage, the names of the respective persons holding any, and what title to the same, and the sums due and unpaid on such coupons respectively, and in the aggregate, together with the aggregate amount of the sums due and unpaid on all bonds and coupons so secured.” It further ordered and adjudged that the mortgagd premises should be sold by the referee “ unless previous to such sale the said defendant telegraph companies, or either of them, pay to the plaintiff or its attorneys the amount herein found as actually due and payable for principal and interest upon the bonds issued under and secured by the said mortgage to the plaintiff, and interest thereon,” besides the costs. The referee did not prior to the sale report the amount due upon the bonds, and hence the appellant claims that the sale was illegal. It was not expressly ordered that the referee should ascertain the amount of the bonds' and make his report before he could sell, and the meaning of the judgment in that respect is not entirely clear. The judgment recites that the amount due upon the bonds appeared to the court, and the premises were ordered to be sold unless “the amount herein (in the judgment) found,” not the amount to be ascertained and reported by the referee, should be paid.

It may be inferred that the main purpose of the reference was to ascertain who held the bonds and by what title they were held, with a view to a distribution of the proceeds of the sale, and that the sum named in the judgment was assented to by all parties and accepted by the court as sufficiently accurate for the purposes of the judgment and sale. The court was competent to interpret its own judgment, and by .its confirmation of the sale it is shown that it understood that the reference as to the amount of the bonds was to be executed after the sale. But if it should be held that the reference ought to have been executed before the sale, so that the mortgagor could pay and thus stop the sale, then the execution thereof before the sale was for the benefit of the mortgagor and it does not complain. But it is undisputed that valid bonds amounting to several millions were outstanding, and it is clear that no one would have paid the amount due upon the bonds for the purpose of stopping the sale. Besides, it appears that the bond-holders have no real interest in the foreclosure or the proceeds thereof, as the entire proceeds will be needed and exhausted to pay claims paramount to the bonds. So in any view the omission to execute the reference before the sale was at most a harmless irregularity - affecting no substantial right, and the court below could at least, in the exercise of its discretion, decline to set aside the sale on that account.

It is further claimed that the referee had no authority under the judgment to execute a deed to the purchaser. But it is implied from the language of the judgment that he was to give a deed, as it provided that the purchaser should be entitled to the possession on the production of his deed, and that the telegraph companies, and their receiver, should join in the deed. The court below having sanctioned the giving of the deed,' and thus construed its own judgment, no ground of complaint on that account remained to this appellant.

The judgment provided that the purchaser at the sale should pay a certain amount of cash, and that the balance of the purchase price might be paid in receivers’ certificates and in bonds secured by the mortgage, and that such certificates and bonds should be received only for the pro rata amount the holders of the certificates and bonds would respectively be entitled to receive on the distribution of the proceeds under the decree. Upon the sale the purchaser paid the cash required by the judgment and delivered to the referee what was supposed, at the time, to be a sufficient amount of certificates to pay the amount bid.

It now appears that the certificates thus delivered are insufficient to pay the balance of the purchase money; but the purchaser gave ample security to pay any balance that might be found due from him, and the court below in confirming the report of the referee ordered that the referee should inquire and report to the court what receivers’ certificates should have been or should be accepted by him in payment of the purchase price, and how much, if anything, is due upon the purchase price. So we think there is no just ground for complaint because the full purchase price was not paid before the deed was delivered.

Prior to the sale there was a reorganization agreement to which the appellant was a party, and it now complains that the purchase was not made in pursuance of that agreement, and that the purchaser has refused to carry that agreement into effect. It would be a sufficient answer to this complaint that the purchaser denies that he was a party to the reorganization agreement alleged by the appellant or that he agreed to purchase under and in pursuance of that agreement, or that he committed any fraud whatever in the purchase. But if the complaint be well founded it furnishes no absolute ground for setting aside the sale. The court below could, in the exercise of its discretion, leave the appellant to pursue its remedy by action to enforce any rights it has under the reorganization agreement, or against the reorganization. •committee for any breach of contract or violation of trust by them. A few days after the sale it in fact commenced an action, against the purchaser, the reorganization committee and the new corporation to which the premises sold had been transferred, to enforce the reorganization agreement and its rights thereunder, and that suit is still pending.

The pendency of that suit does not furnish an absolute bar to the relief here claimed by the appellant, and notwithstanding that, the court below could, in the exercise of its discretion, vacate the sale. But it could give the commencement of that suit its due weight, and on account thereof refuse to vacate the sale and leave the appellant to proceed for its relief in that suit. It was not bound to set aside the sale because a reorganization agreement entered into by some of the creditors of the telegraph company had been violated, and its discretion could not be controlled by such agreement.

There are other facts which the court could properly give and probably did give much influence in considering the application of the appellant It did not offer to bid for the premises upon a re-sale any more than the purchaser had agreed to pay, or any sum whatever, and it did not show that any one would bid any more. It delayed with knowledge of all the essential facts for nearly two years before making the application, and in the meantime the property had gone into a new corporation, which had expended large sums of money thereon, and had mortgaged the same to secure bonds, and had issued stock to the amount of millions. If, therefore, the sale should be vacated, it would be impossible to restore the parties to be affected thereby to the statu quo, and much irreparable mischief might be done.

So, on the whole case, it is clear that the appellant had no absolute legal right to have the sale set aside, and it cannot be said that the court below was without discretion to deny the application, or that it abused its discretion. That, under such circumstances, we have no jurisdiction to review the order appealed from is familiar law. Howell v. Mills, 53 N. Y., 322; Peck v. N. Y. & N. J. R. R. Co., 85 id., 246; Winter v. Eckert, 93 id.,367 ; Dennerlein v. Dennerlein, 111 id., 518; 20 N. Y. State Rep., 110.

The appeal should, therefore, be dismissed, with costs.

All concur, except Peckham, J., not voting.  