Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.
This case poses the question whether a mortgagor has the right, as a matter of course, to redeem the mortgaged premises after a foreclosure sale by the sheriff and prior to the delivery of the sheriff's deed to the successful bidder.
The foreclosure was of a mortgage given in 1953 by Paul Joyce and Dorothy M. Joyce, his wife (now Dorothy M.
Kane), to Penn Federal Savings and Loan Association. Execution was issued October 10, 1961. The sale was held November 10, 1961, at which time Joseph Brogan was the highest bidder. He bid $11,050. The foreclosure proceedings are not before us, and we do not know who was the owner of the property or the encumbrances thereon at the time of the sale, or whether the parties to this appeal had any interest in the property at the time of the sale other than as mortgagor and bidder.
Thereafter the said Dorothy M. Kane moved in the Chancery Division for an order permitting her to redeem the property. Her motion was supported only by an affidavit of her attorney which merely said that on November 20, 1961 he had tendered to the sheriff $11,150 on her behalf, "requesting that such funds be received for the redemption of such property," and that the sheriff had refused to accept it. The $11,150, the affidavit said, was "the amount due on the judgment with interest and costs, plus one hundred dollars additional [over the $11,050 bid] for any accrued interest."
The Chancery Division entered a judgment allowing redemption, relying solely upon Ghee v. Davenport , 2 N.J. Super. 532 (Ch. Div. 1949), affirmed on the opinion below as to the mortgagor's right to redeem, but modified in other respects, in 4 N.J. Super. 518 (App. Div. 1949). Brogan now appeals.
Because of the importance of the question, and since Mrs. Kane filed no brief and entered no appearance in this appeal, we requested Mr. Saul Tischler to file a brief amicus curiae. His brief, which supported the judgment below, has been of great value and assistance to us.
An examination of the transcript of the argument before the Chancery Division indicates that no case other than Ghee v. Davenport, supra , was cited to the trial judge. In the later case of Crane v. Bielski , 27 N.J. Super. 448 (App. Div. 1953), another part of this court disagreed with the holding in the Ghee case, and held that the mortgagor
had no right to redeem after the sheriff's sale. The Supreme Court reversed Crane v. Bielski in 15 N.J. 342 (1954), but upon other grounds, expressly refusing to resolve the conflict between the Ghee and the Crane Appellate Division opinions. It said (p. 346):
"The appellants [in the Crane case], however, did not press their claim as an absolute right of redemption under the Ghee case, supra * * *. Rather, they relied upon an equitable doctrine based on mistake and misunderstanding, and in view of the fact that our determination turns upon the applicability of this principle, we prefer not to decide the issue presented by the Ghee case, being apprehensive it might, under these circumstances, be characterized as mere dictum."
Quite independent of statute or rule of court, Chancery has inherent power to set aside a sale or to order redemption "when there is an independent ground for equitable relief, 'such as fraud, accident, surprise, irregularity in the sale, and the like * * *.'" Crane v. Bielski, supra , 15 N.J. , at p. 346; see also Large v. Ditmars , 27 N.J. Eq. 406 (Ch. 1876); Nevius v. Egbert , 31 N.J. Eq. 460 (Ch. 1879); Kirkpatrick v. Corning , 48 N.J. Eq. 302, 303 (E. & A. 1891). And confirmation may be refused in the court's discretion for a reason which might not be sufficient to set aside the sale. Ryan v. Wilson , 64 N.J. Eq. 797, 802 (E. & A. 1903). In the Crane case the appellants relied, and the Supreme Court granted relief, "upon an equitable doctrine based on mistake and misunderstanding." In the case at bar, however, Mrs. Kane made no effort ...