Batchelar v. Batchelar
| Decision Date | 18 January 1927 |
| Citation | 155 N.E. 123,244 N.Y. 274 |
| Parties | BATCHELAR v. BATCHELAR et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Edward J. Batchelar against Annie L. Batchelar and others. From an order of the Appellate Division, Second Department (217 App. Div. 771, 217 N. Y. S. 130), reversing an order of the Special Term granting Elmer W. Baker's motion to be relieved of his purchase made at partition sale, and denying the motion, the last-named party appeals.
Reversed, and order of the Special Term affirmed.
See, also, 218 App. Div. 738, 217 N. Y. S. 896.
Appeal from Supreme Court, Appellate Division, Second Department.
Charles H. Street, of Jamaica, for appellant.
W. A. McLaughlin, of New York City, for respondent.
A referee's sale, under an interlocutory judgment in an action for the partition and sale of real property, was had on September 2, 1925. Appellant bid in two parcels for $29,600. The terms of sale provided for the closing thereof on or before October 5, 1925. The time was postponed to November 4, 1925, and thereafter to November 18, 1925. The purchaser then attended at the proper time and place and was ready to perform on his part, provided the referee could give a good and marketable title to the premises. The title was defective. The premises were subject to the lien of an undischarged mortgage not mentioned in the notice of sale. The purchaser refused to complete his purchase. Further time was requested, to which he made no objection. Promises speedily to perfect the title were from time to time made by plaintiff's attorney. The purchaser was patient and offered no serious objection to the delay. On December 31, 1925, the referee notified plaintiff's attorney that he had been appointed a city magistrate, and that he could no longer act. When nearly two months had elapsed after the purchaser had refused to take title, on January 6, 1926, he caused a written notice to be served on plaintiff's attorney and the referee, stating that he rejected the title to the premises, and demanding the return of his deposit and payment of his disbursements. He thereafter on January 13, 1926, moved at Special Term to be relieved from his purchase. On February 4, 1926, his motion was granted. It did not appear that a new referee had been appointed or that the defect in title had been cured or could be cured without further delay.
The Appellate Division reversed the order of the Special Term ‘on the law and not in the exercise of discretion.’ It held that the purchaser, having once acquiesced in the delay, could not place the referee in default without first giving him notice to perfect the title within a reasonable time.
[1] Although no authorities are cited in the memorandum opinion, it seems a reasonable inference that the court felt bound by rules laid down in certain cases applicable to private contracts of sale, when time of performance has been waived by the parties to the agreement and notice to perform has been held to be a condition precedent to liability for damages based on rescission.
[2][3][4] This rule is not applicable to...
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...Romanoff v. De Santo, supra. If the remedy of specific performance is to be applied, then under the authority of Batchelar v. Batchelar, 244 N. Y. 274, 155 N. E. 123, the receivers had a reasonable time within which to perfect title. Farley's executors have now suggested that a different ru......
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Reece v. Cartwright
...(C. C. A.) 239 F. 122;Gore v. Burdette, 175 Mo. App. 389, 162 S. W. 321;White v. Brown, 131 S. C. 71, 126 S. E. 750;Batchelar v. Batchelar, 244 N. Y. 274, 155 N. E. 123;Hibernia Savings & Loan Soc. v. Behnke, 121 Cal. 339, 53 P. 812. The bidder is not without a remedy, however. The rule wel......
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Reece v. Cartwright
... ... 122; Gore v ... [228 N.W. 643] ... Burdette, 175 Mo.App. 389 (162 S.W. 321); White ... v. Brown, 131 S.C. 71 (126 S.E. 750); Batchelar v ... Batchelar, 244 N.Y. 274 (155 N.E. 123); Hibernia ... Sav. & L. Soc. v. Behnke, 121 Cal. 339 (53 P. 812) ... The ... ...
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Citicorp Mortg., Inc. v. Burgos, 14717
...good title was sufficient ground to relieve the purchaser at a judicial sale from being required to take title. Batchelar v. Batchelar, 244 N.Y. 274, 277, 155 N.E. 123 (1927). Similarly, the Indiana Court of Appeals held that the trial court had not abused its discretion in setting aside a ......