
    Dunn v. Herbs et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 26, 1890.)
    Mortgages—Foreclosure—Release of Purchaser.
    A purchaser at a foreclosure sale should be relieved from his purchase where the lot sold contains only 8 or 9 acres instead of 89 acres, as described in the notice of sale, and he made his bid in the honest belief it contained the larger quantity.
    Appeal from special term, Columbia county.
    This is an appeal by A. Paul Dunn from an order vacating a sale in foreclosure proceedings instituted by him, and directing the referee to repay to the purchasers, Frederick C. Herbs and Magnus D. Herbs, the amount paid by them on account of their purchase.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      William Lounsbery, for appellant. Chancellor Hawver, for respondents.
   Learned, P. J.

This order should be affirmed. The purchaser bid off two pieces of property, sold together,—one of a little less than three acres, the other described to be 89 acres. By an honest misapprehension, he supposed the piece of 89 acres to be one which belongs to the plaintiff, but which was in fact not sold. The piece which the purchaser in fact bought is of much less value than that which he supposed he was buying, and contains, as would seem, 8 or 9 acres, not 89. The utmost fairness must be observed in judicial sales; and a purchaser will not be compelled to complete his sale when he has bid, under an honest misapprehension, and discovers that he has not bought the property for which he thought he was bidding, and at once applies for relief. We do not say that the plaintiff intended to deceive, but probably the selling of the two pieces together tended to lead the purchaser into the mistake which he made. Order affirmed, with $10 costs and printing disbursements. All concur.  