On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- Justice Oliphant. The opinion of the court was delivered by Wachenfeld, J.
The mortgagee, Henry W. Crane, commenced foreclosure proceedings on November 19, 1952 against the mortgagors, the appellants, Mary Bielski and Genevieve Bush, of the premises known as 986 Townley Avenue, Union. Judgment was entered and the property was duly advertised for sale on March 25, 1953.
About a week prior thereto, Miss Bush consulted Robert Daly, a member of the bar, and exhibited to him a notice of the forthcoming sale of the premises, of which her mother was the record owner. Mr. Daly arranged for an adjournment of the sale for two weeks and says he advised Miss Bush of the new date by telephone and further informed her he could not assist in refinancing the mortgage and "recommended that she seek assistance elsewhere."
The subsequent confusion and misunderstanding are indicated by the various affidavits. Mr. Daly tells of several telephone calls from Miss Bush in which she described her attempts to refinance the mortgage and the various opportunities she had to do so, and he concludes: "It was apparent to me that she was in somewise relying on me despite the fact that I had informed her that I could not be of assistance to her." He says: "She was distraught and very upset about her plight, and, despite my insistence that I could be of no help, she nevertheless called me to report progress on the matter of refinancing. To render my position clear, I wrote her a letter on April 7, 1953," which advised her that the sale was "up again tomorrow," which would be April 8.
Miss Bush and Mrs. Bielski say they did not receive the letter from Mr. Daly until the evening of that day, which was after the sheriff's sale had taken place.
At the sale the respondents Rosoff and his wife purchased the property for $12,200. Within ten days, and on the 17th day of April, the appellants obtained an order to show cause why the sale of the premises should not be set aside and Mary Bielski permitted to make redemption of the amount due, on the ground of inadequacy of price and lack of notice.
The trial court concluded the price bid was not inadequate,
the only evidence to the contrary being the affidavit of the appellants, in which they valued the premises at "$18,000 or more." But the court nevertheless set aside the sale on the ground that the appellants failed to appear due to a misunderstanding and mistake on their part. It permitted the appellants to redeem the premises by paying the full amount of the judgment and costs, provided the same were paid on or before June 5, 1953, and that the defendants pay a counsel fee and title fee to the attorneys for the purchasers at the foreclosure sale. The appellants were likewise to pay interest at the rate of six per cent on the deposit made by the purchasers at the sheriff's sale, but an order was entered suspending the necessity of the payment of the redemption money pending the appeal which was taken.
The Appellate Division reversed, holding: "It was a mistake in exercise of judicial discretion to have set aside this sale in the first instance" because there was no showing of inadequacy of sales price and any mistake made was due solely to the negligence of the appellants. Crane v. Bielski, 27 N.J. Super. 448 (App. Div. 1953). On petition, we granted certification.
Ghee v. Davenport, 2 N.J. Super. 532 (Ch. 1949), affirmed in part 4 N.J. Super. 518 (App. Div. 1949), intimates, on facts not revealing any equities in favor of one party as against the other, that the equity of redemption can be redeemed if applied for within ten days after the sale, as an absolute right.
It rests upon certain cases holding, under the then pertinent statutes, that the sale is not final until confirmation. Federal Title & Mortg. Guarantee Co. v. Lowenstein, 113 N.J. Eq. 200 (Ch. 1933); ...