Boorum v. Tucker. The wife of Giles did not join in this mortgage. The bill further states-and it is an admitted fact, for present purposes-that Giles and his wife subsequently conveyed the premises, by deed duly executed and acknowledged by the wife so as to bar her dower, to the defendant, Tucker. Giles and his wife were not made parties defendant. The usual decree of foreclosure was taken, execution issued thereon to the sheriff of Monmouth county, and the sheriff, on the 26th of May, 1892, filed his report showing that on the 23d of May he had sold the property at public vendue to A. C. H. and C. E. H. (the respondents herein) for the sum of $1,255, and upon that return the sale was duly confirmed on the 3d of June, 1892. On the 7th of November the complainant filed his petition, setting out briefly the proceedings in the cause, the terms, in part, of the sale, showing that the purchasers above named had signed the conditions of sale, and that the sale had been reported and an order of confirmation made, and that the purchasers did not pay the balance of the purchase-money at the time fixed by the conditions, nor take their deed; that they had been requested by the sheriff of Monmouth to do so and had refused, and praying that they might be ordered and decreed to specifically perform their contract by paying the balance of the purchasemoney. An order to show cause was made upon that petition and served upon the purchasers, who have separately answered the same, and the issue arising upon their answers was referred to and tried before me upon evidence produced orally in open court. The power of the court to proceed in this manner is well settled and was not questioned. The purchasers, by signing the conditions of sale, made themselves parties to the suit and subjected themselves to the jurisdiction of the court, and may be proceeded against by petition. They set out in their answers, as a reason for being relieved from their contract to purchase, two defects in the title of the premises purchased. First. They say that the premises are subject to a restriction contained in the conveyance under which the complainant herein derived his title, which still adheres in the Boorum v. Tucker. premises. That restriction is contained in the conveyance from Gilbert Giles (not the mortgagor) and his wife to the complainant, dated the day of December, 1892, and is in these words: "And the said party of the second part for himself, his heirs and assigns hereby covenants with the said Gilbert Giles his heirs and assigns that neither the party of the second part nor his heirs nor assigns nor any of them shall or will at any time hereafter erect or make or suffer to be made or erected upon the above described premises or any part thereof any buildings other than those designed for the use and accommodation of private families or do or suffer or omit to do anything upon said premises in any wise making the locality less desirable for first class private residences." Second. The respondents say the premises are subject to the inchoate right of dower of the wife of J. Morton Giles, the mortgagor, and in support of that they show the following facts: That the complainant, Boorum, conveyed the premises to Morton Giles by deed dated the 28th of September, 1887, and duly recorded on the 5th of November, 1887, and that Morton Giles gave back to the complainant a mortgage other than the one upon which the foreclosure proceedings are based, dated the same 28th of September, 1887, upon the premises in question, to secure the payment of $800, part of the consideration money, which mortgage was also recorded on the 5th of November, 1887, and that that mortgage was canceled of record on the 23d of March, 1888, and that the mortgage upon which the foreclosure is based, although dated on the 28th of September, 1887, was not executed until the 15th of March, 1888, and was not recorded until the same 23d of March, 1888. The argument based on these facts is, that the original purchase-money mortgage having been surrendered and canceled of record and another mortgage taken months after the delivery of the deed, this second mortgage, though expressed to be given for purchase-money, and though actually given for purchase-money, does not bar the wife's inchoate right of dower; and further, that her joining with her husband in the conveyance of the equity of redemption to Tucker cannot be set up at any future time by the purchasers under these foreclosure proceedings as a Boorum v. Tucker. bar to her dower, because the same was made to a stranger, and that the purchasers under these foreclosure proceedings will get no better title than was conveyed by the mortgage upon which the foreclosure proceedings were had. In support of their position, generally, they take, in the first place, the bold ground that in New Jersey a purchaser at a sheriff's sale under foreclosure proceedings is not bound to complete his title if it turns out that it is not what may be called a merchantable title. In support of this position they cite but a single authority in New Jersey, viz., Ely v. Perrine, 1 Gr. Ch. 396. That was a bill by a sheriff praying the specific performance of a contract, as here, to purchase lands sold under a fieri facias out of this court upon a decree in foreclosure. The ground upon which Chancellor Pennington refused to enforce the contract was, that the bill to foreclose was based upon a mortgage which was alleged in the bill to be signed and acknowledged by the wife, and was in fact signed by her, but not effectually acknowledged; that the decree recited and declared that the mortgage was not acknowledged by her, but, nevertheless, contained the usual clause of foreclosure against her. The chancellor held that such a decree did not bar her dower, but that it was calculated to mislead purchasers. The case falls short of holding the proposition contended for by the respondents. I understand the rule in New Jersey to be that a purchaser at a judicial sale is bound to take such title as an examination of the proceedings will show that he will get; he is bound to examine for himself beforehand to see what title he will obtain by the sale. The court, however, treats a contract made with one of its officers as being made with the court itself, and will deal with its contractee upon équitable principles-the same principles, indeed, which govern in all cases of specific performance. Campbell v. Gardner, 3 Stock. 423; Cool's Exr. v. Higgins, 8 C. E. Gr. 308; S. C., 10 C. E. Gr. 117. This last case came before Chancellor Zabriskie on demurrer to a bill to enforce the lien of certain legacies against lands which had been sold by a master of this court upon a decree in proceedings under the statute authorizing the sale of lands limited over after an Boorum v. Tucker. estate for life, and purchased by the defendant, who supposed he was getting the title free and clear of encumbrances. Chancellor Zabriskie says (at p. 313): "If Mr. H. was ignorant with regard to his rights, he must, like other purchasers who purchase at a sale by sheriff or order of any court, who often suppose that they buy free from all encumbrances, take the property subject to all pre-existing liens and encumbrances." When the cause came to final hearing before Chancellor Runyon, he ordered the legacies paid out of the proceeds of the sale, on the ground that the master had publicly announced at the sale that the land would be sold free and clear of these very liens, and assurances to the same effect were given by the parties interested in the proceedings. In Hayes v. Stiger, 2 Stew. Eq. 196, the purchaser at a foreclosure sale asked to be relieved from his bid, on the ground that the wife of the mortgagor and owner of the equity of redemption had not been cut off by the foreclosure proceedings; and it was admitted that the title would be burdened with her inchoate right of dower. The application was refused after an elaborate examination of the authorities. Vice-Chancellor Van Fleet says (at p. 197): "The petitioner was represented at the sale by a member of the New York bar. The sale was fairly and regularly conducted, and no imputation is made against the officer who made it, nor against any other person. If the petitioner acted under a mistake, he alone was responsible for it. He neither sought information by examination nor inquiry. His misapprehension was entirely the result of his own carelessness and inattention to his interests." And again (at p. 198) he says: "No attempt has been made to show that the title the petitioner will get, if his contract is enforced, is worth less than the sum he agreed to pay; it cannot, therefore, be assumed that he will be required to pay more than the title he will acquire is worth. As the case stands, the highest equity he can claim is that he has not made as good a bargain as he expected to make. This can hardly be esteemed an equity sufficient to justify the abrogation of a contract." This last remark applies to the case in hand, for here no proof Boorum v. Tucker. was offered that the property was not worth the amount that was bid for it. The same principle was adopted in Twining v. Neil, 11 Stew. Eq. 470, where the court refused either to relieve the purchaser on his application or to enforce the sale against him on application of the complainant in the decree, but left both parties to their remedy at law. To the same effect is Sullivan v. Jennings, 17 Stew. Eq. 11, which is the latest judicial expression on this topic. But the respondents in this case do not rest upon that point alone, but take the further ground that the agent of the complainant was present at the sale and represented to them that the property was sold under a purchase-money mortgage and was free from all encumbrances; and they say that both representations were untrue in this-first, that the property was not free from encumbrances, claiming that the restriction in the deed above set forth was an encumbrance, and, second, that it was not sold under a purchase-money mortgage, and would therefore be subject to the dower of Mrs. Giles. There is a fair conflict of evidence as to whether or not this representation was made before or after the sale; but, assuming that it was made before the sale, and that the bidding took place upon the strength of its truth, let us inquire whether or not the representation was untrue. First. With regard to the restriction in the deed-it was an ordinary building restriction, such as is found in many conveyances, made, undoubtedly, as well for the benefit of the lot sold. as for that of the adjoining property, as a part of a general scheme for building purposes, and was of a character such as would not be called an encumbrance in the sense in which that word was used by the agent of the complainant and must have been understood by the purchasers. He undoubtedly referred, and was understood by the bystanders to refer, to money liens, mortgages, judgments and the like. There was no proof that the restriction reduces, in the least, the value of the premises. Second. With regard to the other representation, that the property was sold under a purchase-money mortgage, and hence, |