Opinion
Argued June 10, 1873
Decided September 23, 1873
Samuel Hand for the appellant.
The duties of the defendant, as referee for sale of the mortgaged premises under the judgment of foreclosure, were ministerial in their character. The duty of the referee was to sell the premises to the highest bidder, and after receiving the purchase-money to pay therefrom his own fees and expenses on such sale, and then all liens upon said premises existing at the time of the sale "for taxes, assessments or prior mortgages," and from the residue pay the costs awarded to the several parties and the amount reported due the plaintiff, with the interest thereon, or so much thereof as the purchase-money of the premises would pay of the same. Such are the plain directions of the judgment; and if, without or before paying the prior liens, he has paid the plaintiff and the other parties the amounts awarded to them, he has done so at his peril and in his own wrong. The terms of the sale could not vary the judgment or relieve the referee from the performance of his duties; they did not assume to do so in this case. The fourth clause of the terms of sale permit the purchaser to substitute the evidence of the payment of prior liens for money, pro tanto, in his settlement with the referee and payment of the purchase-price; but if the purchaser elects to pay the money, take his deed and hold the referee to the proper execution of the judgment, he may do so. It is true that here the purchaser did not assume this position, and it is now objected that the referee had no sufficient evidence of the prior mortgage or its payment by the relator. The answer to this is that the existence and validity of the mortgage, or its actual payment, are not controverted, and the objection to the sufficiency of the evidence of either fact was not taken at the time of the tender of the balance of the purchase-money and the demand of the deed. The relator does not claim to have paid the lien by taxes and assessments, and they are to be ascertained and paid by the referee.
The order of the 20th of December, 1872, was in accordance with and in execution of the judgment under which the premises were sold, and was within the jurisdiction of the court. If it was improvidently or erroneously granted, the remedy of the party aggrieved was by application to vacate it, or by appeal. It is not void, and it cannot be reviewed upon an application to punish for a disobedience of it. So long as it remains in force the duty of all parties is to obey it, and the merits of the order are not reviewable. ( People v. Sturtevant, 5 Seld., 263; Sullivan v. Judah, 4 Paige, 444; Higbie v. Edgarton, 3 id., 253.) Neither is it a defence in proceedings to punish for a contempt that an appeal has been taken from the order. If the proceedings have not been stayed, the party has a right to take every step for the enforcement of his civil remedy that he might if no appeal was taken. In this case the proceedings are not stayed, but the relator has, by express permission of the court, the privilege of making such application under the order as his counsel may advise.
It is no objection to the order of the Special Term adjudging the defendant in contempt that the court suspended final action for a brief period to enable the defendant to comply with the original order, or perform any act as a substitute for such compliance. That was an act of grace to the defendant, which did not deprive the court of jurisdiction or prevent a final decision of the motion upon the merits. The defendant cannot complain that an opportunity was given him to purge the alleged contempt. The disobedience of the order was clearly established, and if there was any disability on the part of the defendant to comply with the order, it was the result of his own act in disregarding the terms and directions of the judgment, and he cannot avail himself of his own acts to justify a disobedience of the orders of the court of which he was an officer.
An affidavit is annexed to the record, but which, in the nature of things, can make no part of the return to the appeal, to the effect that after the making of the order at Special Term, which is the subject of the appeal, the defendant did comply with the suggestion of the court made upon suspending the final decision. If this were so, and the defendant had any claim, founded upon such action, to be absolved from the contempt, he should have applied for relief to the court. He cannot have the benefit of such action upon an appeal from the order punishing him for contempt. That must be disposed of upon the papers before the court below.
The order must be affirmed.
All concur, except CHURCH, Ch. J., and RAPALLO, J., not voting.
The notice of motion does not comply with the rule by specifying the grounds upon which a reargument is asked. But passing that, no good reason is shown in the printed brief submitted for granting the application. The main point decided by this court in affirming the order appealed from was that the merits of the order, for disobedience to which the proceedings were had, were not reviewable upon an application to punish the disobedience. It is possible that injustice may have been done to the appellant. If this be so, it is in part, if not wholly, because the facts now claimed to be material have not been brought to the attention of the court in a way and at a time to make them available in defence of the various applications that have been made and which have culminated in these proceedings against the very respectable and intelligent referee, who is in a situation in which he may suffer loss. For instance, the very important fact now alleged, that the referee has paid the amount due the plaintiff upon the mortgage foreclosed in the action in the presence of Day, the purchaser, and with his knowledge and express consent, was not alleged by affidavit or made known to the court prior to the order of the 20th of December, 1872, the order upon the merits, which is the subject of the principal appeal and the foundation of all subsequent proceedings now under review, but was stated in an affidavit in defence of the motion to punish for disobedience of that order, and verified on the 4th of January, 1873. The affidavit does not state when that payment was made; but, waiving all criticism, the fact stated, that the payment was with the consent of Day, if it occurred before the order of December, should have been used as an answer pro tanto to the application then made, and could not avail as an excuse for not obeying the order, and in answer to the proceedings for contempt. If it occurred after the order of December, the fact would have authorized a modification of that order on an application for that purpose. The order could not be nullified or modified by indirection, and informally, upon the allegation of the payment, in answer to the alleged contempt. So the affidavit of 25th of January, 1873, alleged to have been before the General Term on the hearing of this appeal, was not a part of the papers upon which the appeal was heard and decided. The facts stated could only avail upon an application to the favor of the court for relief, and if the appellant was misled by the order of the fourth of January, or did substantially and in good faith comply with it as soon as he could do so, although somewhat out of time, he could have made a meritorious case for relief.
The remedy of the appellant, if any he has, is not by a reargument of the appeal in this court, but upon affidavits stating clearly and with precision the history of the proceedings, and upon an application to the Supreme Court, to which all persons in interest, including the plaintiff, who, it is claimed, has been paid his mortgage debt prematurely, shall be made parties, and have a hearing for such relief and such order and direction in the premises as shall be just. It is not intended to intimate that any other or different orders should be made than have been made, but merely to say that the whole subject is within the control and subject to the direction of the Supreme Court.
A motion for reargument is denied.
All concur.
Motion denied.