
    Maunsell Van Rensselaer, Pl’ff, v. Edward S. Bull et al., Def’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Judicial sale—Title—Foreclosure.
    Where a mortgage described the premises as the right, title and interest, of the mortgagor in land in a creek, and the judgment and terms of sale, which were read at the sale, followed the exact language of the mortgage, a purchaser of such premises will not be relieved from his bid on the ■ ground of defective title. It is not necessary for the referee, in such case, to be able to give a good and merchantable titlebut all the purchaser is • entitled to is a deed which will convey all the right, title and interest in the premises which the mortgagor had at the time the mortgage was-given.
    Appeal from order denying a motion made by Messrs. Higgins-- & Lesster to set aside certain sales made to them in this action by a referee under a decree of foreclosure, and to be relieved from their purchase, and requiring said Higgins & Lesster to complete-a purchase made under a foreclosure sale.
    
      B. L. Bushe, for app’lts Higgins & Lesster; J. A. Beall, for-pl’ff, resp’t; J. B. Chandler and R. P. Harlow, for def’t Bull.
   Andrews, J.

This action was brought to foreclose a mortgage. There was a decree of foreclosure, and a sale under that decree by a referee, on May 8, 1888. Higgins & Lesster were purchasers at such sale of several lots, and paid to the referee ten per cent of the purchase price, and the auctioneer’s fees. Subsequently they declined to complete the purchase of some of these lots upon the ground that the title was defective.

It appears by the papers that the mortgage covered a. large amount of property besides the lots purchased by Higgins & Lesster, and that the amount realized upon the sale was largely in excess of the amount necessary to satisfy the claims of the plaintiff, and, perhaps for that reason, no steps were ever taken to compel Higgins & Lesster to complete their purchases.

The money paid on account remained in the hands of the referee and on January 5, 1891, Higgins & Lesster through their attorney served notice of a motion to be relieved from their purchase, and to receive back the money paid by them to the referee. This motion was heard at special term, and denied, and an order was thereupon entered denying such motion, and requiring Higgins & Lesster to complete their purchases; and from that order this appeal is taken.

We do not think it is necessary for the disposition of this appeal to determine whether the referee can give the purchaser a good and merchantable title, for we are of the opinion .that all the purchaser is entitled to is a deed which will convey to him all the right, title and interest in the premises which the 'mortgagor had at the time when the mortgage was given.

The mortgage which was foreclosed in this action describes a large tract of land, lying between Eighth and Ninth avenues, in the city of New • York, by metes and bounds (one of which was the “ Harlem Creek”) which do not include the premises in question. After the description of said tract of land is added the following : “ Together with all the right, title, and interest of 'the said parties of the first part of, in and to the land in said creek lying in front of and adjoining said premises to the middle line of said creek.” The judgment of foreclosure follows the exact language of the mortgage itself; and the terms of sale prepared by by the referee and which were read aloud by the auctioneer at the time of the sale, and before the bidding began, contained the same description which covers the premises in question. Under these circumstances we think that Higgins & Lesster must have known, or at any rate are chargeable with notice of the fact, that when they bid for the premises in question all that they were to get was the right, title and interest of the defendant Bull, by whom the mortgage was executed.

The case falls within the rule laid down by the court of appeals in Riggs v. Pursell, 66 N. Y., 193. There the purchaser at a foreclosure sale sought to be relieved of his purchase. The property sold was leasehold, and a variety of objections were raised to-tlie title. Earl, J., delivering the opinion of the court, said: “This was a sale of premises held under a lease, and the lease was relerred to in the notice of sale, and hence the purchasers are chargeable with knowledge of the contents thereof. They are supposed to have examined the lease and made their bid in view of its provisions; and they are also chargeable with knowledge of what was apparent and obvious upon the premises.”

We cannot say upon the papers before us that the purchasers knew that the premises were made land, although the filling in of such premises by the public authorities, for sanitary reasons, was a matter of such notoriety that it is difficult to believe that the bidders was not cognizant of the fact However this may be, the mortgage and the judgment, both of which were matters of record, accessible to them or their attorney, plainly showed that when the mortgage was given in 1869 the premises were under water, and that all that was to be sold, so far as these premises were concerned, was the right, title and interest of the defendant Bull, who had purchased the premises from the plaintiff and given back a purchase money mortgage, which was the one foreclosed. The notice as to what was to be sold, contained in the mortgage and judgment, was distinctly repeated in the terms of sale, which were read aloud by the auctioneer before the bidding began. Higgins & Lesster therefore knew, or ought to have known, what they were buying, and, if they did not have such knowledge when they bid they were guilty of the grossest negligence, and we do not think that the court should relieve them from their purchase.

Upon the facts before us we do not think that Higgins & Lesster can justly complain because they are required to complete their purchase It appears that they waited for nearly three years before making the present motion, and that, in the meantime, assessments for filling in the sunken lands in question have been laid by the city authorities; and it is possible that this fact may partly account for the present motion. But whether dr not the case is one of hardship we cannot relieve the purchasers in this case without establishing a most mischievous precedent, under which every purchaser at a judicial sale made under circumstances similar to those now presented, who may finally conclude that he had made a bad bargain, must be released from his bid, if he comes into court and claims that he supposed he was buying a good and merchantable title.

The order appealed from should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.  