
    Builders Mortgage Company, Appellant, v. Davis Berkowitz and Others, Respondents, Impleaded with Jacob Abrahams, Appellant. Annie Wolf, Purchaser, Respondent.
    Second Department,
    December 30, 1910.
    Mortgage — foreclosure — conversion by referee — loss falls on mortgagee.
    Where a referee appointed to sell lauds on foreclosure converted the earnest money paid by the purchaser pending an appeal, whereon it was decided that he should be relieved from his bid on the ground that the title was unmarketable, the mortgagee should stand the loss rather than the bidder, who should he repaid out of the proceeds of a resale.
    And this is true whether or no the mortgagee was able and willing to give title on the sale. ' .
    Appeals by the plaintiff, the Builders Mortgage Company, and the defendant Jacob Abrahams, from parts of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 8th day of June, 1910, directing a resale of certain premises.
    
      Henry Escher, Jr., for the plaintiff, appellant.
    
      George E. Miner, for the purchaser, respondent.
   Thomas, J.: .

The appellant in equity sought to foreclose a mortgage. The judgment directed sale and application of the proceeds to the expenses of the action and the payment of plaintiff’s mortgage, and appointed a referee to execute the judgment. The referee sold the premises to Wolf, who made the usual part payment of the purchase price, but the.'title deeds underlying the-mortgage were so defective in description that, as this court considered (134 App. Div. 136), title could not be given to the purchaser. Pending that decision the referee converted the money, and' the court, upon plaintiff’s application, ordered a resale, and payment of the first purchaser’s expenses and partial payment from the proceeds, which pro tanto lessens the amount applicable to plaintiff’s bond and mortgage, and adds to the deficiency judgment. So the present question is, should the plaintiff, or the first purchaser, bear the loss? The plaintiff, having the power of sale, and the right thereby to divest the legal title and transmit it to another to obtain payment, asked the court ■ to enable it to exercise its power by means of its procedure. . At its instance the court acted and appointed a referee to sell, and to receive the purchase money and pay the same to plaintiff in exchange for the title. It resulted that the plaintiff invited the court to do a vain thing, and that not being able to transmit the title, it, by use of judicial proceedings, procured Wolf to purchase and make partial payment to the referee, and that, while insisting that Wolf should pay the balance and take an unmarketable title, the referee stole the advance payment. It is true that the plaintiff did not designate the particular person appointed to act as referee,, but it •did ask the court to appoint a person as referee to sell the property, accept the purchase money and deliver a deed therefor, and to.pay the money received to himself, and, at least, accepted the person appointed to do these things. So it appears that the plaintiff . procured, the purchaser to intrust her money to a referee whom the plaintiff did not and could not enable to convey the title. The plaintiff’s' assurance was that the purchaser should have the title .upon payment of the purchase money, and it procured the designation of a person to receive the. money for it. Wolf was not privy to the judicial proceedings nor accountable therefor. She paid the money to the person whom.the plaintiff designated as its agent, and plaintiff must, as between it and her, be deemed accountable for the money when it reached the hands of such person. Assume that the title had been marketable, and that all the purchase price had been paid. At that instant the purchaser would be entitled to the deed, irrespective of what the referee should do with the money. The purchaser would become in equity the owner of an interest in the land corresponding to the payment duly made, and if the plaintiff could not perform on its part, the purchaser would have a lien on the land for the money paid -so far as the plaintiff’s mortgage lien thereon enabled such interest to obtain. What the referee should do with the money could not affect the purchaser who did, in making payment to him, what the plaintiff had caused to be done. It is quite foreign to the true relation of the parties to assert that the referee in any degree represents the purchaser, while it is the true conception that the referee does represent the plaintiff, having been chosen at its instance to exercise a power of sale vested in the plaintiff, and which the latter asked the court to cause to be executed through its instrumentality. The plaintiff, enabled by the statute directly to execute it, chose to do so through judicial interposition, and may not ascribe to the purchaser losses that the judicial process caused.

This decision is not placed upon the ground of negligence, for the conclusion would be the same if the referee converted the money, whether or not the plaintiff was able and willing to give title. But it does not aid the plaintiff’s equity that it was in the wrong in furnishing an opportunity for the larceny. The seller, unable to give title by reason of his own negligence in the conduct of an action, bears the loss thereby caused. (Raynor v. Selmes, 52 N.Y. 579; Kohler v. Kohler, 2 Edw. Ch. 69.) . If he cannot give title, he must reimburse the purchaser for expenses. That the deposit, if existing, must be returned, is conceded. These analogies aid the purchaser in the present matter, but the conclusion that the plaintiff must bear the loss rests upon the broader fundamental considerations above discussed. Head v. Moore (96 Tenn. 358) does not aid the plaintiff, as the first purchaser was not only enabled fully to withdraw his deposit, but also it was his duty to do so, as the money belonged to him. In Kenaday v. Waggaman (3 App. Cas. D. C. 412) a person was appointed trustee of property, with power and authority to manage and make sale of the same under the supervision and control of the court, and so authorized, did sell land, and the sale was ratified by the court. All this seems to have been done without the knowledge and against the known will and consent of the beneficiaries, upon whose motion the sale was vacated, the trustee discharged, with the order that he pay into court the sum received by him upon the sale. The trustee kept hack some portion of such money, and upon a further sale' by a new trustee, the first purchaser claimed a lien upon the proceeds for the amount lost to him by the failure of the earlier trustee to return the same to the court. In that, case the question was whether innocent persons against whom the trustee had transgressed should bear the loss which he had occasioned by his withholding from the purchaser. It was not a question between the person who had brought about the sale and the purchaser. In the present instance the very person who was responsible for every step taken in the proceeding and who made the sale for himself, and not as a trustee for others, is asked directly to indemnify the purchaser against the loss which his proceeding has caused.

The order should be affirmed, with ten dollars costs and disbursements.

Jenks, Burr, Rich and Carr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  