It is quite possible that the referee erred in undertaking, upon the sale, to provide for' the payment of the prior mortgage. The decree simply directed him to sell the premises, and to distribute the proceeds in the manner therein pointed out. To have confined himself to the duty thus indicated, would have been a performance of which no one could have complained. The plaintiff’s attorney having the carriage of the decree, desired the referee to announce that he would pay off the prior mortgage, and that the purchaser should receive a clear title. Without much reflection, and without an opportunity to examine the decree, the referee made such announcement, and made the sale on those terms. The appellants here, being a portion of the original defendants, say that this was unauthorized by the decree, that it produced an injurious effect upon the price to be obtained, and ask that the purchaser be compelled to pay *178the amount of the prior incumbrance. Assuming the law to be as claimed by the appellants, the relief asked for is a non sequvhir. If the sale was irregular or unauthorized, it by no means follows that the purchasers should be compelled to pay $2,500 more than they bid for the premises. On the contrary, the plain remedy would be to vacate the sale, and again to offer the premises for sale. This the appellants do not ask, and apparently do not desire. While they insist that the sale was irregular, they also insist upon its confirmation. While they say that the referee had no right to sell upon the promise of giving a clear title, they still insist that the purchasers shall be held to their purchase, and shall pay $2,500 more than they undertook to pay, when they bid on the property. This claim is in violation of every sound principle. The purchasers never made the contract which the appellants seek to impose upon them. They have performed fully the bargain they did make. The appellants have received, and yet enjoy the benefit of it, and nothing further can be required of the purchasers.
I can sée no advantage in requiring the purchasers to bring this $2,500 into court for the purpose of distribution. There is no suggestion that the holder of the mortgage desires this to be done, or even that his mortgage is in such a condition that he can be compelled to receive the amount of it. He is not even a party to the action. Whether it is done, or the mortgage shall continue as a security, and shall be a lien on the premises sold, is of no possible importance to the appellants. It covers the whole premises, is the first, and so far as appears, the only lien, and all the appellant’s rights in the premises are finally and forever foreclosed.
The order of the General Term should be affirmed, with costs.
Clerke, J.This may' be deemed an application seeking the equitable interposition of the court. The application is, that the purchasers should be compelled to complete' their purchase. The answer is, that they have already done so. The referee expressly told them, at the time of the sale, that *179at the suggestion of the plaintiff’s attorney in the foreclosure suit, he would pay off the prior mortgage, and give a clear title. The premises were then sold under that announee3 ment, for §20,000, and thereupon such an arrangement was •made that the referee executed and delivered a deed, and the purchasers paid Mm §20,000, less §2,562.63, which was the amount of the prior mortgage on the day of sale, and which, unless since paid by the purchasers, is still an incumbrance on the premises. The effect of granting this application would be to compel the purchasers to pay §2,562.63 more than they, contracted to pay. This would be inequitable; and the General Term were right in refusing to lend its aid to an effort to deprive these purchasers of money which they never undertook to pay.
The order should be affirmed, with costs.
So affirmed.