Bradford v. Downs

O’Brien, J.

(dissenting):

We concur with Mr. Justice Patterson that the court had power, which upon a proper showing it should exercise; but we differ with him in thinking that upon the facts shown the power was improperly exercised. The partition suit was first brought, and were it not for the extension of time accorded to the mortgagee, Mrs. Downs would have been enabled to have a decree and sale in partition before there could have been a sale in foreclosure, and we have her attorney’s affidavit in which, with respect to the extensions of time in the partition suit, he says : “ I assumed, as in my opinion I had the right to assume, after my conversations-with their counsel, that the result of the extensions would not be permitted to be that a sale in foreclosure could be had before a sale in partition or an actual partition.” In addition, we have the statement under oath of a reliable real estate expert, which, not being controverted, we must take as true, to the effect that if the undixdded interest of Mrs. Downs is sold in the foreclosure it will bring a very considerable percentage — he says forty per cent — less than it would bring if sold in the partition suit in conjunction with all the other undivided interests in the property. Taking his valuation of the property as a whole, it xvill be seen that Mrs. Downs’ interest would be $75,000. If sold in foreclosure, separate from the other undivided interests, it xvould bring, according to the expert, forty per cent less, viz., $45,000, xvhich would just about cover the mortgage, interest and costs and taxes. So that the .result would be that Mrs. Downs would have nothing left. It would, therefore, appear to be to the advantage of Mrs. Downs and of the mortgagee, if all he desires is to collect his money, that the sale should be had in the partition suit.

As a condition of obtaining the stay, the court beloxv required that a bond for $7,500 should be given, conditioned that Mrs. Downs should pay any deficiency in the foreclosure sale or any deficiency of her share of the proceeds of sale in partition if one should be had, to meet the entire amount of the foreclosure judgment, interest and costs, including any costs of adjourning the foreclosure sale. So that the effect of staying the foreclosure suit is not in any way to injure the mortgagee, but to give, him this additional security and provide a method of sale in partition which, according to the evidence, would furnish him a larger fund out of which his mort*101gage could, be paid. It is impossible to conclude, therefore, from this record that the mortgagee can in any way be injured, except to the extent that he is prevented from proceeding arbitrarily with what he claims to be his right of executing his decree in a foreclosure sale, regardless of the injury which he may inflict upon Mrs. Downs.

It would be difficult to present a stronger array of facts to invoke the power of the court to prevent a needless loss to Mrs. Downs without any corresponding benefit to the mortgagee.

We think that the order should be affirmed, with costs.

Williams, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.