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Ghee v. Davenport

Decided: March 24, 1949.

LUCY H. GHEE ET AL., PLAINTIFFS,
v.
WILLIAM DAVENPORT ET AL., DEFENDANTS



Civil action.

Kays, J.s.c.

Kays

This matter came before me on a motion by the defendants to redeem after a sheriff's sale in foreclosure. The motion was made within ten days of the sale and before delivery of a conveyance by the sheriff.

The single question for determination is whether the mortgagors are entitled to redeem the mortgaged premises by payment of the amount of the final judgment with interest, costs and sheriff's fees after a sale has been made under a foreclosure judgment, but prior to the expiration of ten days after such sale and before the delivery of the deed which is the time within which objections to the sale may be made. See, Rule 3:77-5.

Prior to September 15, 1948, the statute (R.S. 2:65-12) required the sheriff, or other officer directed to sell mortgaged premises, to report the sale to the court within five days after sale. Upon so doing, the court could approve and confirm the sale as valid and effectual in law if satisfied by competent proof "that the premises were sold at the highest and best price then obtainable in cash".

As of September 15, 1948, the above statute was amended by P.L. 1948, Chap. 378, Sec. 2. By virtue of the amendment, report and confirmation of a foreclosure sale are required only when and as provided by Rules of the Supreme Court. The Rules of the Supreme Court do not require confirmation by the court if a sale of real estate is made by a sheriff or coroner unless a motion for hearing of an objection of the sale is served upon him and given to all persons in interest within ten days of the sale or at any time thereafter before delivery of the deed. The rule requires that the motion shall be made returnable not later than twenty days after the sale unless otherwise ordered by the court. The rule further requires the sheriff or coroner to file with the court, within a reasonable time after the sale, a report of the sale and the costs thereof whether or not objections to the sale are made. See, Rule 3:77-5.

At this juncture it should be noted that although the Rules of the Supreme Court do not require confirmation unless a motion for a hearing of an objection is made and heard, nevertheless, the sale herein was confirmed as of course on February 21, 1949, three days after service of notice of this motion. The purchaser, apparently regarding such confirmation as surplusage, makes no contention whatsoever as to the effect thereof.

The premises in question were bid in at the sheriff's sale on February 10, 1949 by a third party for an amount in excess of the amount adjudged to be due to the mortgagee. He resists the motion of the defendants to redeem of which notice was served upon the sheriff and all parties in interest on February 18, 1949.

The judgment for sale herein provides:

"* * * that the defendants stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to so much of the said mortgaged promises as shall be sold as aforesaid under this judgment."

Under this form of judgment, the right of redemption continues until the sale. See, Atwood v. ...


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