
    Kenneth B. McEwan, App’lt, v. Daniel Butts and Louisa Carpenter, Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    4. Appeal—Judgment of non-suit will not be disturbed if evidence to support.
    Where there is evidence to sustain a judgment of non-suit, it will not he disturbed on appeal.
    2. Foreclosure—Sale.
    A sale under a judgment of foreclosure will not be set aside in the absence of fraud, simply because a higher price can be reasonably anticipated on a re sale, even where relief is sought by motion.
    Appeal by the plaintiff from a judgment in favor of the defendants, dismissing the complaint on the merits.
    The action was brought to set aside a sale of a farm situated m the town of Greece, Monroe county, upon a mortgage foreclosure judgment. . .
    . . The action was tried at a Monroe county equity term m September, 1891.
    
      John Desmond, for app’lt; Albert H. Harris, for resp ts.
   Lewis, J.

The defendant, Daniel Butts, was indebted to his father, Christian Butts, at the time of the desa^h of his father, February 19, 1888, in the sum of about $900.

0Simon Butts was appointed executor of the will of Christian Butts, and as such executor obtained a judgment against Daniel ' Butts on said claim for $1,082.77 in January, 1890.

An execution was issued upon said judgment against Daniel Butts’ property and returned wholly unsatisfied, and thereafter the said executor sold the judgment to the plaintiff for the sum. of $175.

Daniel Butts was the owner of a farm in the town of Greece,. Monroe county, at the time of bis father’s death, and while he was owing his father the debt aforesaid. The farm was mortgaged Ito the Rochester Savings Bank for $2,000, which mortgage was dated March, 1887. The mortgagor, Daniel Butts, neglected to pay the interest as it fell due on the mortgage, and the bank commenced an action to foreclose the mortgage and recovered a judgment and the farm was sold as directed by the judgment, November 17, 1888, to the defendant Louisa Carpenter, she being the highest bidder at the sale.

The executor, Simon Butts, held the claim as executor against Daniel Butts at the time the sale took place, he neglected to attend the sale to protect the claim, although he was informed in due time that the sale was to take place, and he neglected for more than a year after the debt was due and after the. sale to put the claim in judgment.

The defendant, Louisa Carpenter, after purchasing the farm sold a portion of it and borrowed of the Rochester Savings Bank $2,000, and gave to the' bank in payment her bond with a mortgage, as collateral thereto, upon that portion of the land purchased at the sale which the plaintiff seeks to reach by this action. The bond and mortgage are unpaid still. The land brought or. the foreclosure sale considerably less than its true value.

The plaintiff, as the owner of the judgment against Daniel Butts, purchased as aforesaid of the executor of Christian Butts, brought this action in September, 1890, against Daniel Butts and Louisa Carpenter to set aside the sale under the savings bank foreclosure judgment and the sheriff’s deed of the premises to Louisa Carpenter, on the ground-’ that the judgment and sale and conveyance were procured by fraud and collusion of the defendants. That portion of the premises which the defendant Carpenter conveyed after the sale is not sought to be reached by this action.

The cause was tried at the Monroe county special term and resulted in the dismissal of the plaintiff’s complaint on the merits.

From the view we have taken of this appeal the foregoing or& all the facts we deem necessary to particularize.

The plaintiff’s evidence tended with considerable force to prove the allegations of fraud in his complaint, but his evidence was met by the evidence of Mrs. Carpenter, Daniel Butts and other witnesses called by the defendants, so that the case presented' questions of fact for the determination of the trial justice, and he found them in favor of the defendant. We have carefully-read the evidence and cannot say that it so preponderated in favor of the plaintiff that we would be justified in disturbing the judgment. The trial court had the opportunity of seeing the witnesses and hearing their testimony. If Mrs. Carpenter and her witnesses testified truthfully she was a Iona fide purchaser for value, and both herself and father were free from any fraud in the premises.

Stress is laid on the fact that the land sold for considerably less, than its value. This would be a more important factor had the plaintiff sought relief by way of a motion to set. aside the sale, addressing himself to the favor and discretion of the court. By the form of his action he claimed the legal right to set aside the deed and sale because of fraud, and having failed to prove fraud, the price the land brought is of no importance.

A sale under a judgment will not be set aside in the absence of fraud, surprise, or well grounded misapprehension, simply because a higher price can be reasonably anticipated on a r.e-sale of the premises, even where relief is sought by motion. Kellogg v. Howell, 62 Barb., 280; Burchell v. Voorhis, 49 How., 247.

The plaintiff’s exceptions to the admission of the evidence as to the value of the life estate of the defendant Daniel Butts in a part of the property sold, are unavailing, as he failed to establish fraud.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.  