Empire State Trust Co. v. Fisher Co. 67 Eq. to a creditor by any person with a view, or under an expectation, of being or becoming an insolvent debtor, and with an intent thereby to give an undue and improper preference to such creditor, is void. And it was admitted in the case that the property of the debtor, at the time he made the transfer above in question, was insufficient to pay his debts, but the court held that the assignment was not voluntary because it was produced by the urgent pressure of the creditors. The case of Chicago Title and Trust Company v. John A. Roebling's Sons' Co. et al., 107 Fed. Rep. 71, deals with the question of what is a fair valuation of property under the section above cited. That was an action by a trustee in bankruptcy to recover from the Roebling sons the amount which they had realized under a judgment and execution against a manufacturing company at Peoria, Illinois. The judgment was entered by confession in less than four months before the bankruptcy, and it was held that as at a fair valuation of the bankrupt's property at the time the judgment was entered the concern was not insolvent, the preference was not unlawful, because, under the proper construction of the Bankrupt act he was not insolvent at the time the judgment was entered. In re Eggert, in the circuit court of appeals, the seventh circuit (1900), 102 Fed. Rep. 735; 43 C. C. A. 1, the question of what was the state of mind of the creditor, who obtains security from an insolvent debtor, was discussed, and apparently all the cases up to that date were dealt with, and the headnote shows the conclusion as follows: "In determining whether the taking of security by a creditor constitutes an illegal preference, under Bankrupt act of 1898, section 606, the creditor is not to be charged with knowledge of his debtor's financial condition from mere non-payment of his debt, or from circumstances which give rise to mere suspicion in his mind of possible insolvency. On the other hand, it is not essential that the creditor should have actual knowledge of or belief in his debtor's insolvency, but it is sufficient if he has reasonable cause to believe him insolvent. If facts and circum 1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. stances with respect to the debtor's financial condition are brought home to him such as would put an ordinarily prudent man upon inquiry, the creditor is chargeable with knowledge of the facts which such inquiry should reasonably be expected to disclose." In the same line is In re Chappell, 113 Fed. Rep. 545, the second headnote of which is as follows: "A merchant, seven months before filing his petition in bankruptcy, sent a creditor a post-dated check and a note for the balance of his debt, and afterwards renewed the note, paying it a little less than four months before the petition was filed.— Held, that such acts, while showing that he was not in possession. of ready money to meet this particular debt, were not evidence that he was insolvent, within the meaning of the Bankrupt act, section 1, subdivision 15, providing that a person shall be deemed insolvent whenever the aggregate of his property, exclusive of any which he may have fraudulently concealed or conveyed, shall not, at a fair valuation, be sufficient in amount to pay his debts." My conclusion is that the Broadway Trust Company's mortgage is a valid lien on the premises. I will advise a decree accordingly. THE STATE MUTUAL BUILDING AND LOAN ASSOCIATION V. EDWARD A. O'CALLAGHAN et al. [Submitted January 5th, 1904. Decided March 1st, 1904. 1. On the foreclosure of a mortgage a decree pro confesso was taken and an order of reference made to a master to report the amount due. Defendant petitioned the court to correct the decree before sale, claiming that the decree was for too large a sum, exceeding by about five per cent. State Mutual B. and L. Ass'n v. O'Callaghan. 67 Eq. the sum admitted to be due. The petition was denied. On appeal from the order denying the petition, and from so much of the decree as adjudged the amount due and directing a sale of the property, the court reversed the order denying the petition. Thereafter defendant moved that the sale under the foreclosure, made and confirmed pending the appeal, be set aside. Held, that though the court on appeal determined that the owner of the equity of redemption of mortgaged premises has the absolute right to have the precise amount due on the mortgage judicially settled before the sale of the premises can take place, the sale would not be set aside. 2. A purchaser purchased at a sale under a mortgage foreclosure decree unimpeachable except as to the amount due the mortgagee. No notice was given at the sale of an appeal from an order denying an application for the correction of the amount adjudged to be due, and the only notice the purchaser had of such an appeal was such as might be imputed to him by the filing of the notice of appeal in the clerk's office three days before the sale. The sale was duly confirmed without objections or exceptions.Held, that the purchaser was a bona fide purchaser. 3. A mortgagor neglecting to give notice at the sale under the foreclosure decree of his appeal from an order denying his application to correct the amount adjudged by the decree to be due the mortgagee, and failing to except to the confirmation of the sale, is, as against the purchaser, estopped from claiming that the sale is invalid. 4. An applicant to a loan association for a $40,000 loan was informed as to the terms under which loans were made, which were that applicants, on being accepted, became stockholders, required to pay fees for the stocks, monthly dues and premiums. He was informed that the initial payment for premiums and fees would be $1,000. He accepted the terms and received $39,000.--Held, that $1,000 originally deducted from the loan was a voluntary payment by the applicant, and hence he was not entitled to any credit therefor, either on account of principal or interest. Hearing on petition of defendant O'Callaghan and answer of complainant thereto. Mr. Edward A. Armstrong, for the complainant. Mr. James R. Bowen, for Messrs. Goldstein & Fineburg. Mr. Fiske, for the Commercial Trust Company. Mr. Warren Dixon, for Mr. O'Callaghan. PITNEY, V. C. This matter comes before the court under peculiar and unusual circumstances. 1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. The object of the bill is to foreclose a mortgage made by O'Callaghan and wife to complainant, dated November 9th, 1900, to secure the payment of $10,000 in one year, with interest, payable monthly. The bill was filed November 2d, 1901, and alleged complete default in payment of interest, and also of dues under complainant's charter and by-laws in accordance with the terms of the mortgage and the terms of the bond given to secure the same debt. Beside the defendant O'Callaghan and his wife, three judgment creditors of O'Callaghan were made parties defendant and duly served with process; and, no answer having been filed, a decree pro confesso was taken December 24th, 1901; and notice under the rule having been duly given by two of the judgment creditors that they desired to have their judgments passed upon by the master, an order of reference to a master was incorporated in the decree pro confesso. In pursuance of that order the master made a report, dated January 8th, 1902, by which he found that there was due to the complainant on that day the sum of $45,132.92, which included dues, fines, interest and premiums in arrear to the amount of $8,753.32 less the withdrawal value of stock held by O'Callaghan in complainant's corporation, amounting to $3,620.40, being the full value thereof. He also found that there was due to one judgment creditor $175.77, and to another $3,328.89, which, after adding costs of $155.33, made a total encumbrance of $48,792.91, with interest from January 8th, 1902, besides sheriff's execution fees. Upon that report final decree was made January 18th, 1902, and execution issued accordingly to the sheriff of Hudson county. He duly advertised the property for sale on March 20th, 1902, at a place specified. At that time and place the defendant O'Callaghan appeared with his counsel, and, at his request, the sheriff adjourned the sale for one week, to March 27th. On that day the defendant. O'Callaghan and his counsel again appeared and procured an adjournment from week to week for four weeks, to April 24th. On April 21st, 1902, counsel for defendant O'Callaghan pre State Mutual B. and L. Ass'n v. O'Callaghan. 67 Eq. sented to me a petition in which he set up briefly the proceedings in the cause, and in which he asserted that the decree was erroneous and oppressive "in that the amount of interest due, together with the principal from November 9th, 1900, less the amount of $600 paid by your petitioner thereon, would be the sum of $2,000 only, and that the decree should have been for the sum of $42,155.33—principal, interest and costs." The prayer was that the decree might be opened, and that he might have such relief in the premises as equity and justice require and all proceedings under fieri facias be stayed until the further order of the court. Annexed to that petition was an affidavit by Mr. O'Callaghan, stating "that there is due on said bond and mortgage for principal and interest as aforesaid on January 8th, 1902, the sum of $42,000." That petition was sworn to on April 15th, 1902, and an order was prepared to be presented with the petition to a vice-chancellor, which order bears date April 17th, 1902, and was, in fact, on or shortly after that date presented to a vice-chancellor, who declined to advise an order thereon. On the presentation of that petition to me, and not being informed of the fact that the petition had been refused by another judge, and failing to observe the date written in the order, I advised the order, returnable on Monday, April 28th, 1902, calling on the complainant to show cause why the decree should not be opened, and ordered that all proceedings thereunder be stayed until the further order of the court, and that the sheriff adjourn the sale from week to week until the further order of the court. The hearing on that order was adjourned, by consent, to May 22d, and at that hearing I was informed, for the first time, that there were defendants who had decrees in their favor who had not been, as I recollect, brought into the hearing on the present petition, by notice or otherwise, and that the sale had been adjourned for nine weeks. I also learned that the amount found due by the master was actually due upon the bond executed by the defendant, and |