Bradford v. Downs

Patterson, J.:

The order appealed from by the plaintiff Bradford stayed proceedings in an action for the foreclosure of a mortgage after such *98action had proceeded to judgment and a sale of the mortgaged premises had been advertised by the referee named in the judgment. The order was made upon a motion of the mortgagor, who does not pretend to have any defense to the mortgage, but who only claims that a delay of a sale, under the foreclosure judgment, until such time as the property may be sold under a judgment in a partition action, will be of advantage to her, and that a better price for the property may b"e procured under a partition sale than under a foreclosure sale. It appears that the mortgaged premises were owned by Mrs. Downs and Reuben W. Ross, Eva J. Rogers and Estelle Ross, as tenants in common, each being entitled to an undivided one-fourth part. Mrs. Downs began an action for the partition of the premises in May, 1897. At that time Eva J. Rogers and Estelle Ross were the owners of a mortgage upon Ella R. Downs’ (the plaintiff in the second above-entitled action) undivided interest. That mortgage was assigned in August, 1897, to the plaintiff Bradford, who brought this action to foreclose it. There is nothing whatever in these papers to show that the assignment was made for any oppressive purpose or to gain any advantage, or for any other reason than to make an absolute transfer thereof to Bradford, who, in seeking to enforce the security, is merely pursuing his legal right, and in the effort to enforce that right is entitled to the aid of the court, and if that aid is withheld without sufficient reason he merely suffers a denial of justice.

The question involved here is not as to the power of the court to control its judgments or its process and to suspend the enforcement of one or the operation of tire other in furtherance of justice ; it simply is whether, on the facts of this case as they are made to appear on this motion, it was proper for the court below to interfere with Bradford’s absolute right to the remedy given him by the solemn judgment of the court. The only circumstances made to appear as a ground for granting this motion was the opinion of one real estate broker, who states in an affidavit that the value of the property embraced in the partition suit is $296,000, and “ a sale, however, of an undivided fourth interest therein, in case such interest were sold separately, would involve very serious loss, and would bring very much less than one-fourth of what the entire property would bring on a sale thereof.” We are unable to see what in jus*99tice there is in allowing a suitor, situated as Bradford is, to pursue that course which the law has provided for him for the enforcement of his rights. He is doing nothing hut that which the mortgagor authorized him to do in case of default, namely, to foreclose the mortgage and sell the undivided one-fourth interest as an undivided one-fourth interest. To obstruct him in the pursuit of his remedy and the realization of his money in due course of law, only because a debtor fancies or believes that it will be more to that debtor’s interest if another course is pursued, can never he a reasonable ground for the court depriving a suitor of that to which he is absolutely entitled. It is simply an application to the court to deprive a creditor of his legal right, to suit the convenience of a debtor, based in this case only upon the opinion of one person as to the possible consequences of the court allowing the creditor to do that to which it has adjudged him to be absolutely entitled. To maintain this order would be to establish a mischievous precedent, if hardship in the execution of the process of the court alone is judicially declared to be a sufficient cause for suspending that execution. All the moving party is entitled to is a fair sale in the regular ivay. If unforeseen circumstances, which would depreciate the value of the property, were to arise, such as invasion or pestilence or some great public calamity, it would be within the power of the court, doubtless, to postpone a sale, but to stay all a plaintiff’s remedy and make his right abide the event of other proceedings in which he has no interest is to deprive him altogether of his right, or make it subordinate to the wish and put it under the control of third persons.

The condition annexed to the order, that the moving party should give security for any deficiency arising on a sale in the partition suit, and the making and service of such undertaking, does not affect this question. "The plaintiff Bradford has not been accorded a favor by the order, the acceptance of which would preclude his appealing therefrom.

The order of the court below was manifestly wrong and must be reversed, with ten dollars costs and disbursements, and the motion for a stay of proceedings denied, with ten dollars costs.

Van Brunt, P. J., and Ingraham, J., concurred; O’Brien and Williams, J J., dissented.