Statement of case. containing thirty-one acres, be the same more or less, being the same premises which were conveyed by Frederick Ryer and wife to Josiah Briggs by deed, dated April 1, 1865." In pursuance thereof he gave notice on the 11th of February, 1887, by posting an advertisement, that he would sell the premises, which were described as in the judgment, on the twenty-eighth of March then next. At the sale then made Richard Webber became the purchaser at the price of $15,000, and paid ten per cent, after subscribing conditions of sale by which it was provided that the balance of the bid should be paid on the twenty-third of April, and in default thereof the premises should be again put up for sale under the direction of the referee, with or without application to the court, as he might elect, and "the purchaser held liable for any deficiency" resulting therefrom, and the costs and expenses of the resale. The purchaser did fail to pay the remainder of the purchasemoney, and applied to the court for an order releasing him from the bid, discharging him from all claim in the premises, and directing the referee to repay to him the ten per cent, and also his costs and expenses, amounting to $470. The court denied the motion, and on application of the plaintiff directed a resale, and "that the purchaser at the first sale pay the deficiency resulting therefrom." L. E. Prendergast for appellant. The fact of the purchase having been made at judicial sale leaves the purchaser entirely without blame, because, not under any duty to inquire, being entitled to rely on the representations made at the auction and sale. (Paine v. Upton, 87 N. Y. 327.) The facts attending and preceding the sale here make a case of representation, afterwards discovered to be untrue and which affected the purchase, and because of which the purchaser should be relieved. (Paine v. Upton, 87 N. Y. 331, 332; Wilson v. Randall, 67 id. 342; Belknap v. Sealey, 14 id. 151.) Courts may relieve purchasers against mere accidents, mistakes or hardships. (Fisher v. Her sey, 78 N. Y. 387; Fairchild v. Fairchild, 59 How. Pr. 351; Am. Ins. Co. v. Simers, 3 Ch. Sent. 70; Marsh v. Ridgway, 18 Statement of case. Abb. Pr. 262; Veeder v. Fonda, 3 Paige, 94; Laight v. Pell, 1 Edw. 577.) A good objection to the title offered was that the referee failed to publish for liens, and that, therefore, certain liens, to wit: The claims of creditors of George Dennerlein, deceased, are not barred by the sale. (Code, §§ 1562, 1621.) The court will relieve a purchaser where title is doubtful or imperfect, although probable that he may never be disturbed. (Lee v. Lee, 27 Hun, 1; People v. Knick. L. Ins. Co., 66 How. Pr. 115; Beckenburgh v. Nally, 32 Hun, 161; Fleming v. Burnham, 100 N. Y. 1; Weeks v. Tomes, 16 Hun, 349; 76 N. Y. 601.) Where gross unfairness would result if the purchase should be enforced, the court lays hold of minor irregularities for the purpose of relief. (Chapman v. Boetcher, 27 Hun, 606.) Mr. Webber should have been discharged from his purchase and been returned the ten per cent he paid. (In re Cavanagh, 14 Abb. Pr. 261; Rogers v. McLean, 31 Barb. 304.) The purchaser has H. C. Henderson for respondent. accepted the premises and entered into possession as the owner thereof, and has shown no reason why he should be released from his contract. (Morris Canal Co. v. Emmett, 9 Paige, 168; Faure v. Martin, 3 Seld. 210; Marvin v. Bennett, 26 Wend. 169; Stebbins v. Eddy, 4 Mason, 414.) The purchaser should furnish affirmative evidence of liens and ask to have them removed, or that he be relieved from the obligations incurred by him as such purchaser. Until this is done he presents no case for the interference of the court. (Noble v. Cromwell, 27 How. Pr. 293.) The claim of the widow for dower is superior to any claim against the estate of the deceased, and the sale of the real estate to satisfy her dower divests the lands from the liens of such claims. (Higbie v. Westlake, 14 N. Y. 281, 285.) The advertisement by the executor or administrator for claims under the statute does not in any way affect a claim unless presented and rejected. (Code of Civ. Pro. § 2750.) SICKELS-VOL. LXVI. 66 Opinion of the Court, per Danforth, J. DANFORTH, J. The grounds assigned by the purchaser for the interference of the court were (1.) his belief at the time he bid that the described premises consisted of thirty-one acres, whereas as he afterwards ascertained, they contained only twenty-four and three-quarters acres; (2.) the omission of the referee to advertise for liens on the premises. It appears that in addition to the notice of sale already referred to, a handbill was issued on the seventh of March in the name of the referee, in which the lines of boundary were omitted and the premises briefly described as the farm of "the late John Dennerlein, containing thirty-one acres." The plaintiff says he had one of these handbills in his possession and in bidding relied upon the statement of quantity contained therein. It differs from the advertisement and from the description of quantity in the contract signed by himself and by the referee, in that the latter contains the words "more or less." It does not appear that he had not seen at an earlier time the original and legal advertisement containing those qualifying words. It is plain that the official advertisement contained nothing likely to mislead. The sale took place upon the premises, and the failure to obtain full and accurate information was solely due to the intending purchaser's own negligence. There was sufficient ambiguity in the notice to call for a survey if definite knowledge as to quantity was material, and the result shows that by the aid of a surveyor it was easily obtained. The second objection is formal only. If any lien in truth existed, beside those provided for by the decree, or any cloud upon the title, or other fact prejudicial to the title, it should have been set out by the purchaser as ground for relief. Nothing of the kind appears. It is, however, not material to discuss the facts. They have been passed upon by both the Special and the General Terms of the Supreme Court, and there is nothing in the case making either order an exception to the general rule which leaves each court to control, according to its discretion, the mode of executing its own judgment. (Fisher v. Hersey, 78 N. Y. 387.) Statement of case. Both appeals should, therefore, be dismissed, with costs in this court to the respondent of one appeal only. All concur. Appeals dismissed. JULIA EMMA BURGER, Respondent, v. JOHN BURGER, Jr., Executor, etc., Appellant. To authorize the General Term to review the facts on an appeal from a Angevine v. Jackson (103 N. Y. 470) limited and distinguished. (Argued October 10, 1888; decided December 11, 1888.) APPEAL from order of the General Term of the Supreme Court in the fifth judicial department, made April 19, 1887, which reversed, "for error of fact," a decree of the surrogate of Monroe county admitting to probate the will of John Burger, deceased, and directing a trial by jury of this question: "Was John Burger of sound and disposing mind at the time the will in question was executed?” W. A. Sutherland for appellant. The General Term had no power on the appeal taken from the surrogate's decree to reverse the decree and order a new trial before a jury. (Code, § 2545.) It had no power to review the facts, and its 111 523 126 428 523 135 416 111 523 141 171 Statement of case. reversal was, therefore, error. (In re Hood, 104 N. Y. 103, 108; In re Kellogg, Id. 648, 650; Angevine v. Jackson, 103 id. 470-472.) Julia Emma Burger, the appellant from the decree of the surrogate admitting the will to probate, and upon whose appeal alone the General Term reversed the decree, was not a party aggrieved within section 2568 of the Code. (Vandemark v. Vandemark, 26 Barb. 416; Ross v. Wigg, 100 N. Y. 243, 246; Hall v. Brooks, 89 id. 33, 36; Hyatt v. Dusenberry, 8 Cent. Rep. 78; Fairbanks v. Corliss, 1 Abb. 155; Banta v. Kent, 4 Week. Dig. 62; Wheat v. Rice, 15 id. 104; People v. Horton, 64 N. Y. 58.) Jurisdiction to entertain the appeal was not conferred upon the General Term by the fact that the proponent of the will appeared in that court by other counsel and argued the appeal. (Wilmore v. Flack, 96 N. Y. 512-518; McMahon v. Rauhr, 47 id. 67.) An appeal lies to this court from the judgment of the General Term reversing the surrogate. (Angevine v. Jackson, 103 N. Y. 470.) Upon an appeal from the General Term reversing the surrogate, the merits of the controversy are brought before the Court of Appeals, and it becomes the duty of this court to inquire into the facts. (Hewlett v. Elmer, 103 N. Y. 156, 166; In re Ross, 87 id. 514-516.) Thomas Raines for respondent. The order states that the decree of the surrogate was reversed upon a question of fact, and directs a trial by jury of the issues. An appeal from such an order will not lie. (Code of Civil Pro. § 2588; Sutton v. Ray, 72 N. Y. 482.) The order is not a final order. (Talbot v. Talbot, 23 N. Y. 19, 20; Redfield's Surrogate Prac. [3d ed.] 317; 3 R. S 66, § 55; Id. 509, § 98; 72 N. Y. 483, 484; 3 R. S. [6th ed.] 70, § 82; Code, § 2588; In re Ross, 87 N. Y. 516, 517; Hulett v. Elmer, 103 id. 156; Marvin v. Marvin, 3 Abb. App. Dec. 192; Sutton v. Ray, 72 N. Y. 482.) Should the Court of Appeals reverse the decision of the General Term, it must still send an issue to a jury to be tried. It could not admit the will to probate. (Code of Civ. Pro. § 2588: Sutton v. Ray, 72 N. Y. 483, 484.) |