Harding v. Dam

[749]

KERRIGAN, J.

This is an appeal by defendants from an order refusing to vacate a sale of mortgaged premises and a deficiency judgment, and to recall a certificate of sale and an execution, in a foreclosure suit.

Prior to April 29, 1916, a judgment of foreclosure had been entered against the defendants, and on that date defendant F. H. Dam, contemplating an appeal, and being himself an attorney, wrote to Richard Belcher, attorney for the plaintiff, advising him of his intention to take an appeal from such judgment, and added: “I expect to file my stay bond at the same time that I file my notice of appeal, and in the meantime to bring on a hearing to fix the amount of the stay bond. My understanding is that it was verbally stipulated between us that execution pending the foregoing proceedings will be stayed.”

This letter was answered by Belcher on May 1, 1916, as follows: “I am in receipt of yours of the 29th, inclosing a copy of order extending time and notice requesting the preparation of transcript of the record. It would be useless of course for me to advertise a sale while- these matters were pending, and I shall not do so.”

On this same day, May 1st, Dam, evidently not having received this reply to his letter of April 29th, wrote Belcher as follows: “From our verbal understanding in court on the day of the hearing of a motion for a new trial I have been assuming that there is no notice of sale now running in the case of

Harding

v.

Dam,

but it just occurs to me that I had better ascertain definitely if such is the fact. If notice of sale is now being published please wire me tomorrow, at my expense, the name of the newspaper and date noticed for the sale, and also please mail me a printed slip containing copy of the notice.” To this letter no reply was deemed necessary, nor was any made, and at the time no notice of sale was being published. Thereafter, on June 2, 1916, upon notice and hearing the court fixed the amount of the undertaking staying execution at two thousand dollars. Twenty-eight days later, on June 30th, no undertaking having been filed by the defendants, the commissioner theretofore appointed by the court commenced the publication of notice of sale, and made a sale of the property on the twenty-fifth day of July, 1916. Plaintiff was the only bidder at the sale, and purchased the property for the sum of nine thousand five