
    Gouverneur S. Bibby and wife v. Samuel L. Gouverneur et al.
    
    
      Sept. 11, 1844.
    Where a resale is ordered and that the defaulting buyer make up any deficiency, he will not be let up merely on account of a variation of the ori- ' ginal terms of sale in regard t<5 the per centage of deposit—especially where he attends on the resale and is a bidder.
    
      Practice.
    
    Master’s sale of mortgaged premises, at which the defendant Samuel L. Gouverneur bid off the property at seventeen thousand four hundred dollars; but he made default in regard to completing his purchase. An order was made on default for a resale and that he make good the deficiency. At the ultimate sale, T. Cadwallader bought the property for fifteen thousand five hundred dollars. By the conditions of the first sale a deposit of seven and a half per cent, was to be made ; while by those of the last sale, the deposit was to be two per cent. A motion was made to open the order-taken by default on such equitable terms as the court might see fit to grant. An affidavit in support of the motion was made by Mr. Van Cott on behalf of his client Gouverneur. That the latter was now absent from the state and did not know, when the order against him was made, that the terms of sale were in any way changed.
    It appeared that he attended on the resale and bid.
    Mr. J. M. Van Cott, for the motion.
    Mr. James Humphrey, in opposition.
   The Vice-Chancellor :

There is no sufficient ground for relieving the defendant from the liability imposed upon him. He has brought it upon himself by his own acts and acquiescence in the resale on his account. His personal attendance and bidding for the property at the resale without objection as to the terms is to be taken as a waiver of all objection on that score.

His present motion must be denied, with costs to be taxed.  