of the mortgaged premises and distributed the proceeds thereof according to the directions of the judgment, he must make a report of the sale and his proceedings to the court. The report should be prepared and filed by the officer making the sale as soon as practicable after the disposition of the proceeds of the sale, as directed by the judgment. The report of the referee may be excepted to. An error in reciting the date of a decree of foreclosure in such report of sale is immaterial, where the record furnishes the means of correcting it.' To sustain a report of sale as against exceptions filed to it, affidavits showing that the terms of sale were different from those reported, are inadmissible.' § 524. What referee's report should show. — The referee's report should be a complete history of his proceedings, and should show that every direction given in the judgment has been fully executed. It should contain a statement of his fees and of the necessary expenses connected with the sale, and should be accompanied by proper receipts or vouchers for all payments and disbursements. All receipts and vouchers should be attached to the report and filed with the clerk, and a note of the day of filing the report should be entered by the clerk in the proper book under the title of the cause. The report will become absolute and stand in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of filing the same.' Where the judgment directs the officer making the sale to report any deficiency that may arise, and the proceeds of the sale are not sufficient to satisfy the mortgage, with the costs and expenses, his report should set forth that fact and specify the amount of such deficiency. Where there is a surplus, a report of the sale can not be filed or confirmed unless accompanied by a proper voucher for the surplus moneys, showing that they have 1 Ruggles v. First Nat. Bank of Centreville, 43 Mich. 192 (1880). been paid to the proper parties or deposited pursuant to the directions of the judgment.' § 525. Confirmation of referee's report. In some states no title passes to the purchaser until the sale is confirmed by the court. It seems, however, that where a deed has been executed and delivered without a confirmation of the sale by the court, long continued possession under it will render the title valid.' When the report of the referee, or other officer making the sale, is filed, any party to the action may enter an order, of course, confirming the same, unless cause against the same is shown within eight days; if no exceptions are filed and served within that time, the report of sale will become absolute, without notice or further order. An order of confirmation is appealable. Until the report of the sale is confirmed, any person aggrieved may make a summary application to the court for a resale, provided he has just grounds to sustain such application." Under the New York practice, it seems that it is not necessary for the plaintiff to give notice to any party of the filing of the report of the officer making the sale; neither is it necessary for him to obtain an order confirming the report, preliminary to the issuing of an execution to collect any deficiency specified in the report, and which is provided for in the decree of foreclosure and sale; yet it certainly is the safer practice to give notice of the filing of the report, and after waiting eight days for the filing of exceptions thereto, 1 New York Supreme Court Rule 61. 2 Mills v. Ralston, 10 Kan. 206 (1872); Young v. Keogh, 11 Ill. 642 (1850); Busey v. Hardin, 2 B. Mon. (Ky.) 407 (1842); Allen v. Poole, 54 Miss. 323 (1877); Gowan v. Jones, 18 Miss. (10 Smed. & M.) 164 (1848); Hays' Appeal, 51 Pa. St. 58 (1865). 2 Gowan v. Jones, 18 Miss. (10 Smed. & M.) 164 (1848). See post chap. xxvii. 4 Tarrans v. Hicks, 32 Mich. 307 (1875). See N. Y. Supreme Court Rule 30. 5 Kochler v. Ball, 2 Kan. 160 (1863); Detroit Fire & Marine Ins. Co. v. Renz, 33 Mich. 298 (1876). Brown v. Frost, 10 Paige Ch. (N. Y.) 243 (1843). See Strong v. Dollner, 2 Sandf. (N. Y.) 444, 448 (1849). Moore v. Shaw, 15 Hun (N. Y.) 428 (1878); aff'd 77 N. Y. 512 (1879). to move the court upon the usual notice at a special term for an order confirming the report.' In some states, however, confirmation of a sale can be regularly made only after due notice of motion to the parties adversely interested, that they may show cause against it. It is said in Williamson v. Berry,' that "notice of the motion is given to the solicitors in the cause, and confirmation nisi is ordered by the court — to become absolute in a time stated—unless cause is shown against it. Then, unless the purchaser calls for an investigation by the master, it is the master's privilege and duty to draw the deed for the purchaser, reciting in it the decree for the sale, his approval of it, and the confirmation by the court of the sale in the manner that such confirmation has been ordered." The supreme court of the United States say in the case last quoted, that "before a purchaser can get a title, he must get a report from the master that he approves the sale, or that he was the best bidder, accordingly as the sale may have been made, either privately or at auction." But in the more recent case of Blossom v. Milwaukee and Chicago Railroad Company,' the same court held that a bidder at a public auction, whose bid has not been accepted, -the sale being adjourned for a sufficient cause, and finally discontinued—can not insist on leave to pay the amount of his bid, and on an order confirming the sale to him, even though his bid was the highest and best bid, and covered the full amount of the decree, together with the costs of such sale. The question of usury can not be raised on a motion for confirmation." § 526. Referee's report should state amount of deficiency. It seems that where a judgment in an action to Moore v. Shaw, 15 Hun (N. Y.) 428 (1878). See post chap. xxvii. 2 Branch Bank of Mobile v. Hunt, 8 Ala. 876 (1845). 49 U. S. (8 How.) 495, 546 (1850); bk. 12 L. ed. 1170. 4 Williamson v. Berry, 49 U. S. (8 How.) 495, 496 (1850); bk. 12 L. ed. 1170. 570 U. S. (3 Wall.) 196 (1865); bk. 18 L. ed. 43. Smith v. Myers, 41 Md. 425, 434 (1874). foreclose a mortgage provides, "that if the proceeds of the sale be insufficient to pay the amount so reported to be due to the plaintiff, that said referee specify the amount of such deficiency in his report of the sale, and that the defendant pay the same to the plaintiff," it is not necessary to apply to the court for an order confirming the report of the referee before issuing execution against the defendant for the amount of the deficiency; nor does it appear to be necessary to enter any further judgment upon the filing of said report.' But the better practice appears to be to have the report of the referee confirmed and to enter judgment for the deficiency." It was formerly the practice in New York to have the report of the referee or other officer making the sale confirmed before issuing an execution for any deficiency; but that practice was the result of a rule of chancery and is not provided for by the present Code. A failure under the present practice to procure a confirmation before issuing execution for a deficiency, is a mere irregularity at most, and being purely a question of practice, the decision of the court below will be final.* $527. Substituted or supplemental report of refereeNotice to defendant.-After the report of the referee or other officer making the sale has been duly confirmed, leave to file a substituted report of the sale, the original report having been lost, and to enter a personal judgment for any deficiency not realized by the sale, should not be allowed,' except upon notice to the defendant or some one entitled to represent him." 2 1 Moore v. Shaw, 15 Hun (N. Y.) 428 (1878); aff'd 77 N. Y. 512 (1879). See N. Y. Code Civ. Proc. § 1627. Springsteene v. Gillett, 30 Hun (N. Y.) 260 (1883); Moore v. Shaw, 77 N. Y. 512 (1879), aff'g 15 Hun (N. Y.) 428 (1878). See Moore v. Shaw, 15 Hun (N. Y.) 428 (1878); aff'd 77 N. Y. 512 (1879). 4 N. Y. Code Civ. Proc. § 721, sub. 12; Moore v. Shaw, 77 N. Y. 512 (1879), aff'g 15 Hun (N. Y.) 428. 'Chicago & G. W. R. L. Co. v. Peck, 112 Ill. 408 (1885). CHAPTER XXVI. SETTING SALE ASIDE AND RESALE. GENERAL PRINCIPLES WHO MAY APPLY FOR GROUNDS FOREFFECT OF-TERMS IMPOSED-RESALE. § 528. General principles - When sale will not be set aside. 529. Discretion of court. 530. Who may have sale set aside. 531. How sale may be set aside. 532. Time of making application for resale. 533. When application for resale will be granted-When denied. 534. When sale may be set aside where plaintiff is purchaser. 535. What advance must be bid on resale. 536. What sufficient grounds for setting sale aside. 537. Irregularity in conduct of sale. 538. Not set aside because of few bidders. 539. Inadequacy of price. 540. Motion to set sale aside for inadequacy of price. § 528. General principles-When sale will not be set aside. A sale made in a mortgage foreclosure will not, as a rule, be disturbed where it was fairly made and is free from fraud, and there is an absence of all circumstances which would justify setting it aside.' Some good reason must always be shown to justify an interference with the sale. If there is no legal right to relief,' as a matter of course, the application McCotter v. Jay, 30 N. Y. 80 (1864); Lefevre v. Laraway, 22 Barb. (N. Y.) 167 (1856); Gardiner v. Schermerhorn, Clarke Ch. (N. Y.) 101 (1839); Whitbeck v. Rowe, 25 How. (N. Y.) Pr. 403 (1862); White v. Coulter, 1 Hun (N. Y.) 357, 364 (1874); American Ins. Co. v. Oakley, 9 Paige Ch. (N. Y.) 496 (1842); s. c. 38 Am. Dec. 561; Duncan v. Dodd, 2 Paige Ch. (N. Y.) 99 (1830). It is said in McCotter v. Jay, 30 |