
    E. and H. Hoppock, Executors, &c., v. Conklin and others.
    May 10th to 13th ;
    May 21, 1847.
    Where a defendant in a foreclosure suit, liable for the deficiency, if any, and who is intending to attend the sale and prepared to bid for his protection, is prevented by accidental causes, (although he used reasonable diligence,) from attending or being represented at the sale of the premises, whereby the same were sold for one-third of their value, leaving a large deficiency against such defendant; the court ordered a re-sale ;
    It was held to be reasonable diligence in such party, to write by mail to an agent of sufficient pecuniary ability, when the party himself was precluded from attending the sale, and his previous conversations with the complainant and his solicitor, were such as to induce him to believe that they would not suffer the mortgaged premises to be sold for less than the debt and costs.
    The complainants who were trustees, bid in mortgaged premises at a sale on foreclosure, for a third of their value, under such circumstances of surprise as to other parties in interest, that the court ordered a re-sale.
    
      Held, that the trustees were right in declining voluntarily to relinquish the pur- ■ chase, and were entitled to their costs and charges in resisting the motion for a re-sale.
    Motions by the defendants Conklin and Mrs. Wyckoff separately, for a re-sale of mortgaged premises situate in Barclay street, in the city of New York. The mortgage in suit was executed for a part of the purchase money, by Conklin, for four thousand dollars, accompanied by his bond, and was owned by the complainants as executors. Conklin sold the premises subject to the mortgage, to Mabbett and Mulligan, who assumed its payment. They afterwards became insolvent, and the mortgage was foreclosed. Mrs. Wyckoff was a subsequent mortgagee, from M. and M. Conklin resided in Albany, and being in New York while the foreclosure was pending, had interviews with H. Hoppock, and with E. A. Seely, one of the complainants solicitors. Both concurred with him that the premises were worth much more than C.’s mortgage, and their language was such that he was led to believe, and he might fairly infer from it, that in no event would they suffer the premises to sell on the expected decree for less than the mort7 gage debt and costs. Neither of them, however, gave him any assurance to that effect. Mr. Seely promised to write to him and inform him of the day fixed for the sale.
    
      The decree was obtained, and the premises were advertised by a master with the usual publicity, to be sold at the Merchants Exchange, on the 28th day of January, 1847, at twelve, noon. Conklin did not see or hear of the notice of sale, except by Seely’s letter informing him of it, which reached him at Albany at eight or nine o’clock in the evening of Monday, January 25th. The letter was written on the Friday previous. In regular course, the mails between New York and Albany, in the winter of 1847, left each city every morning, except Sunday, and arrived at the other city from seven to eight o’clock in the evening; the route being by steamboat between New York and Bridgeport, Conn., and by railroad from there to Albany. When the Hudson river was open, the mails between New York and Albany arrived at each place every morning and evening in the week, except Sunday evening. Seely’s letter reached Albany on Saturday evening. On Monday morning, Conklin was obliged to attend as a juror in the United States Distirict Court in Albany. He was detained in and about the court until evening, which prevented the letter from reaching him till that time. When the court adjourned in the evening, he was on the panel of jurors in a cause then on trial and unfinished. He might, by extraordinary diligence, have written a letter that night, and procured it to be mailed in time next morning to go to New York on Tuesday; but his affidavit stated that he believed the judge holding the court would excuse his further .attendance, so that he could go to New York himself on Wednesday. On Tuesday he applied to the judge to be excused, so as to attend the sale, but the trial being still unfinished, the judge refused to discharge him. On Tuesday evening, he thereupon wrote and mailed a letter to A. P. St. John of New York, a near relative and active business man, whose resources were such that he could bid at the sale to the necessary amount. The letter requested St. John to attend the master’s sale on Thursday, and bid on the property for Conklin to an amount sufficient to exonerate his liability in respect of the mortgage and the costs. Conklin had a son arrived at manhood, whom he might have sent to New York on Wednesday, with his message to St. John. His letter to the latter arrived at New York on Wednesday evening, but was not received by St. John on Thursday until about an hour after the sale had taken place. He would have attended and bid, if he had received the letter in time.
    The mortgaged premises were sold by the master on Thursday at twelve o’clock; and were struck off to the complainants in the suit, for two thousand dollars. The master’s report of sale Was filed and the usual order of confirmation entered on the sixth day of February, 1847; and the master conveyed the premises to the complainants, who immediately rented them for the year commencing on the first of May, for six hundred dollars. (The premises were a leasehold property.) By the master’s report of sale, it appeared that the deficiency in the mortgage debt and costs, after applying the proceeds of the sale, was the sum of $2453 15, for which Conklin was liable to the complainants.
    It was shown by the affidavits read on the motion, that the premises were worth at the time of the sale, at least six thousand dollars; and Conklin stipulated on a re-sale, to bid the amount of the mortgage, with interest, costs, the costs of a re-sale and the taxes outstanding on the premises. He first heard of the result of the sale about the seventeenth of February. He immediately came to New York, and on a representation of the facts, applied to the complainants to consent to a re-sale, or to give up their purchase to him, on receiving their debt and costs and all their expenses. This they declined to do, and he thereupon moved for a re-sale.
    In Mrs. Wyckoff’s case, it appeared that she resided in Pennsylvania, and relied on the statement of one of her mortgagors, who said he would attend to the matter, and that he had already procured a purchaser who would bid more than $6000 at the sale.
    
      S. M. Woodruff, for Conklin,
    relied on Tripp v. Cook, 26 Wend. 143; and Collier v. Whipple, 13 ibid. 224. He also cited Brown v. Frost, 10 Paige, 243 ; Billington v. Forbes, 10 ibid. 487; Brasher v Church, 1 Clarke’s Ch. R. 475.
    
      
      W. Silliman, for Mrs. Wyckoff,
    cited in addition, Sugd. on Vend. 53 and 55 note, ch. 2, § 2 ; Duncan v. Dodd, 2 Paige, 99.
    
      W. A. Seely and W. T.McCoun,
    
    for the complainants, referred to Williamson v. Dale, 3 J. C. R. 292; Lansing v. Macpherson, ibid. 434; Requa v. Ray 2 Paige, 239 ; American Insurance Company v. Oakley, 9 ibid. 259.
   The Vice-Chancellor.

The defendant Conklin was justifiable in relying upon receiving information from Mr. E. H. Seely, as to the time of the sale. The circumstance that he attempted to induce Mr. Hoppock and the Messrs. Seely to protect him at the sale, does not detract from the position that he intended to give to it his personal attention; nor does his own statement, that he understood and believed Mr. H. would bid the requisite amount.

Mr. E. H. Seely informed Conklin of the sale, in fulfilment of his promise and in perfect good faith. His letter would have been in time, but for an occurrence against which no foresight of Conklin’s could guard, and which it was wholly out of his power to remedy.

I have no doubt that the first time he knew of the letter, was in the evening of Monday the 25th of January. It was not in season for him to consider or decide on the proper measures to be pursued, either in time for the mail to New York on the ensuing day, or to despatch a messenger the next morning. He thought the judge would relieve him from the jury, so that he could attend the sale in person, and this could not be ascertained till the court convened on Tuesday. He was not bound to know, nor is it reasonable to suppose he knew, that the judge could not discharge him from the trial then pending.

On learning this on the 26th January, he wrote through his son by the mail, to a proper person and one competent in point of means, to attend the sale. The letter in due course would have reached St. John, in time to have enabled him to be present at the sale ; but through another mishap it did not come to his hands till after the hour when the sale took place.

It is objected that Conklin should, have sent his son, instead of sending a letter. I do not think he was bound to use such a great degree of diligence, under the circumstances. The property was worth more than the mortgage debt. Although Mr. Hoppock did not intend to give an assurance that he would bid to the amount of the debt, yet it is obvious that his conversation, as well as that of the Messrs. Seely, had the effect to confirm Conklin’s belief, that the property would under any circumstances relieve his liability, and to disarm the extreme vigilance which he might otherwise have felt impelled to exercise for his own protection. Mr. E. H. Seely’s letter, corroborated Conklin’s views derived from those interviews and from the intrinsic value of the mortgaged premises.

The complainants under this state of facts, had no right to require from Conklin, any more than ordinary prudence and diligence, in providing for his interests in the sale. It is clear that he used as much diligence as was reasonably practicable, in the condition in which he was placed, when the letter from Mr. Seely reached him. And thus, without any fault on his part, through a concurrence of accidental causes, he was prevented from being represented at the sale; the property was sold to the complainants for about one third of its value; and Conklin became chargeable with a deficiency on his bond, exceeding the whole sum bid at the sale.

The case comes within the well established and benign principles on which this court relieves against sales made under its decrees. It is a much stronger case than Collier v. Whipple, 13 Wend. 224; and Tripp v. Cook, 26 Wend. 143, is a clear authority for granting the relief sought.

The complainants, holding the mortgage as executors, were perfectly right, in declining to relinquish the purchase. Such an act would have been at the peril of proving at some future day, that the facts were such as entitled Conklin to have a resale. They must therefore be paid their costs, and the counsel fees incurred on this application, and protected in the acts done by them under their deed of the premises.

There must be an order for a re-sale of the premises. The master will expose them for sale, at the amount of the debt, interest, taxed costs of suit and his own costs on the former sale. If any bidder take the property at that or a greater sum, the former sale will be vacated, and the complainants will release to the new purchaser. Out of the proceeds, the master will pay the foregoing costs and charges on this motion, the costs of suit and of both sales, and then the debt and interest. The surplus, if any to be brought into court.

As to Mrs. Wyckoff’s motion, I doubt whether it could be granted. The decision on Conklin’s application has rendered it unimportant, and as the complainants are put to but little additional costs on her motion, I will dispose of it by dismissing it, and directing the complainants of opposing the motion, to be paid with those before mentioned, out of the proceeds of the resale. Or if there be no re-sale, they must be paid by Mrs. Wyckoff.

In case no bidder will take the property at the price at which the master offers it, the motion of Conklin will be thenceforth denied with costs to be taxed, including the master’s costs and charges of proceeding to sell anew.  