
    Van Winkle vs. Stearns and others.
    •Sheriff's sale set aside, on the ground of surprise, upon terms.
    Motion to set aside sheriff’s sale under foreclosure, on the ground of surprise.
    
      Mr. Thomas M. Moore, for motion.
    
      Mr. James VanBlarcom, contra.
    
   The Chancellor.

This is an application in behalf of Dr. Richard A. Terhune, to set aside a sale made by the sheriff of Passaic county, of -certain mortgaged premises, by virtue of an execution for the .sale thereof, issued in this cause. It appears, from the evidence, that the foreclosure was begun and conducted at the request and in the interest of Stearns, the owner of the property, who held it subject to the complainant’s mortgage. The ■origin of that mortgage is this: Dr. Terhune was at one .time the owner of the mortgaged premises. Having agreed to sell them, he executed, at the request of the purchaser and for the accommodation of the latter, and without consideration, his bond and mortgage thereon for $1000 and interest, and conveyed the property to the purchaser, subject to the mortgage. He did not, it may be remarked, ascertain the fact of his liability for deficiency until after the sheriff’s sale had taken place. He had a mistaken notion that he could not be held liable personally. As between Stearns, who was the real purchaser at the sale, and Dr. Terhune, the sale ought not, under the circumstances, to stand. There are other considerations also, arising out of the complainant’s conversation with Johnston the evening before the sale, which are of much weight in favor of granting the relief which Dr. Terhune seeks. The property sold for only about one-fifth of its value. The bidder to whom it was struck off was nominally the complainant’s son, but actually the complainant, and the real purchaser was Stearns. The sale will be set aside, and the sheriff will be directed to re-sell the property. Dr. Terhune will be required to pay the costs of the suit at law which the complainant has brought against him on the bond, and to give security that he will bid at the sheriff’s sale an amount equal to the amount which will then be due to the complainant on his decree, including the sheriff’s fees of both .sales.  