1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. I find no foundation for it in reason or justice. It would, in my opinion, never do to hold bidders to the duty of taking notice of the filing of papers of that kind up to the moment of sale. The well-established rule, I think, is that persons having such objections to a sale must give public notice at the sale. Further than that, the sale was duly reported to this court for confirmation, and ample time was given, according to the rules of this court, for objections to be made thereto.. No objections or exceptions were made, and the sale was duly confirmed by a solemn decree of this court, directing the sheriff to complete the same. The purchasers, therefore, claim under a decree, or rather two decrees, of this court made in a matter in which it had undoubted jurisdiction, and they had and have the right to rely thereon. They became and were bona fide purchasers for a valuable consideration without any notice which this court can recognize of any weakness in the proceeding. The pe-. titioner, by his neglect to give notice at the sale and to except thereto, is estopped as against the purchasers. It follows that the sale has created vested rights in third parties. The land has been converted into money in due course of law. No complaint is made that it did not bring its full value. Under all these circumstances I will not be the first judge to hold that all that proceeding must be undone. I can find no foundation for such action either in precedent or reason. The well-settled rule is that sales to third parties under erroneous but unreversed judgments and decrees are valid. See Freem. Exec. § 345; Wiltsie Mort. For., and Kerr's Supp., supra. Without, therefore, inquiring whether this sale can be disturbed in this summary mode upon a mere notice without pleading of any kind, I conclude this motion must be denied. I come now to the action I took under the mandate of the court of errors and appeals immediately after denying the motion to set aside the sheriff's sale and conveyance. I ordered the complainant, within fifteen days, to file and serve upon the solicitor of the defendant O'Callaghan his answer to his petition upon which the order to show cause was originally State Mutual B. and L. Ass'n v. O'Callaghan. 67 Eq. granted, and that the petitioner have leave to bring on the hearing on the petition and answer on five days' notice. This, I conceive, was a strict and complete obedience of the mandate of the court of errors and appeals and the language of the opinion. The complainant duly filed his answer to the petition and the cause was brought on for hearing. Testimony was heard and statements of counsel and admissions thereof made, and the following case was disclosed: The petitioner inherited the premises in question from his father, subject to a mortgage of $30,000 and large arrearages of taxes and assessments. That mortgage was put in course of foreclosure, whereupon the defendant applied to the complainant, which is a building and loan association organized under the laws of the State of New Jersey, for a loan, and was granted a loan of $10,000. That application, according to the constitution and by-laws of the association, was, in form, an application to become a member, and to have allotted to him four hundred shares of stock, of the par value of $40,000. He was fully apprised of the terms of the application, which were, among other things, that the stockholder should pay a fee of $1 for each share of stock, called an entrance fee; he was also to pay a monthly due of fifty cents for each share and a fine of ten per centum for non-payment of monthly dues, besides which a premium was exacted for the loan, and then the shares of stock, when issued, were to be held by the association as collateral security for the loan. These matters were all explained to the defendant and the monthly rents of the premises were stated to be some $700 or more, and it was explained to him that the monthly dues under his loan would amount to nearly the amount of his rents, but that such monthly payments would go to increase the value of his stock, so that when the stock reached par in value his mortgage would be paid and satisfied and the result of the transaction would be the gradual paying off of his mortgage. He was informed that the initial payment for premiums and entrance fees would be $1,000. 1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. To this the defendant assented, and $39,000 was actually paid and advanced by complainant and the shares of stock were issued. In all of this the defendant had the benefit of counsel, besides being, as I have already remarked, himself an attorney-at-law and a solicitor of this court. The defendant paid none of his monthly dues, either by way of premiums or interest, and this suit for foreclosure was commenced, with the result already stated. Of course, as defendant was duly served with process, and as he put in no answer, he could not set up surprise, except that the master's report was not authorized and warranted by the allegations in the bill, and this is the precise point which the court of errors and appeals decided in his favor, upon its merits, and upon which the case is now before me. Coming to that point in the proceedings, I am of the opinion that the $1,000 originally deducted from the loan was a voluntary payment by him of the entrance fee and premium, duly and fairly exacted by the complainant under its constitution and by-laws, and voluntarily consented to by petitioner, and that the petitioner is not entitled to any credit therefor on account of either principal or interest thereon. The question of usury was not raised, and it was assumed that it could not be raised successfully under the legislation authorizing the complainant's organization. Hence the complainant is entitled to maintain its decree to the extent of $10,000, and interest thereon, which up to the date of the master's report, commencing with the date of the mortgage, November 9th, 1900, to January 8th, 1902, would be $2,800. (The complainant, in its statement, makes it $2,786.66.) The difference of $2,352.92 between the amount of principal and interest and the amount found by the master, amounting to $45,152.92, is made up of premiums at the rate of fifty cents per share per month, monthly dues on four hundred shares, and fines for non-payment, amounting in all to $5,966.66; against which is credited what I interpret to be the withdrawal value of $3.620.40 of the capital stock, leaving $2,346.26 included in the State Mutual B. and L. Ass'n v. O'Callaghan. 67 Eq. master's report for items not covered by the language of the mortgage. But against this result the complainant contends that the neglect and inattention of petitioner to the proceedings before the decree, to which reference has already been made, viz., neglect to attend before the master, though as a solicitor well familiar with the practice of the court, his neglect to examine the decree and execution on file before the issue of the latter, and his neglect, as he alleges, to examine the execution in the sheriff's hands until after the property was advertised for sale, and his conduct after it was so advertised, were such as to bar him in equity from having this correction made in the master's report. Complainant alleges that petitioner knew of the error at least as early as the property was advertised for sale, and probably sooner; that he deliberately procured adjournments and rested, without taking action, from March 20th until April 21st, and then, by applying to the court, procured further adjournments, so that the sale was actually delayed about ten weeks, during which time the defendant was receiving the rents and profits. I think the allegation of knowledge by petitioner of the error in the decree, although denied by him, is sustained by the proofs. The petitioner accounts for his conduct by stating that he was looking for a new loan on the premises, and this, I think, would naturally and almost necessarily lead him to ascertain from the sheriff the sum total of the amount to be raised by the execution. Moreover, proof was offered that on March 27th, the first adjourned day, counsel for defendant stated to counsel for complainant, who attended the sale, that the decree for complainant was much too large. All these matters were, as I thought, proper matters for consideration on the motion to stay the sale. The court of errors and appeals thought otherwise. But, I think, it does not lie in the mouth of the complainant to set up either defendant's non-action or his knowledge by way of estoppel. In the first place, it has already received of the purchase 1 Robbins. State Mutual B. and L. Ass'n v. O'Callaghan. money more, by about $2,000, than was due to it on the basis above stated; and, in the next place, it will receive interest in full, at the rate of six per cent., on a loan of $40,000, when in fact it only advanced $39,000. While I do not say that the terms of the original loan, as to dues, premiums and fines, were unlawful or usurious, I do say that they were so severe and hard as that a court of equity will not render any extraordinary aid to it in enforcing them. The result of these views is that the complainant must be charged with the precise sum of money which it received, or should have received, from the sheriff as of the day when his deed was delivered, or should have been delivered, and should. be credited with $42,800, and interest thereon, from January 8th, 1902, and costs of the suit, amounting to $155.33, with interest thereon from January 18th, 1902, to the same day, and that the balance found in its hands be paid into court, to await the further order of the court, after notice to the subsequent encumbrancers. I do not charge interest against the complainant on that balance because I am of the opinion that the defendant O'Callaghan could have had that amount ascertained and immediately applied toward the subsequent encumbrances by simply taking advantage of the leave reserved to him in the order of May 22d, 1902 His petition was not dismissed and some time necessarily and naturally elapsed between the sale and its confirmation in due course of practice. That time was ample for him to renew his application under the leave reserved. The moment that it appeared that the sale produced more than enough to pay what he admitted to be due by the terms of the mortgage, this court would have made an order retaining such excess within its control until its proper application could be judicially determined. There was not the least occasion for the expense and delay of an appeal. Moreover, the evidence heard on the petition and answer satisfies me that it is highly probable that if the complainant's decree had been reduced before the sale to the amount above |