consideration, agree to do something for the benefit of a third, such contract or agreement may be enforced as against the two contractors. It is equally well settled that, upon legal consideration, parties may agree to dispose of their property at the time of their deaths in certain specified ways or to certain specified people. The cases which hold that the courts will enforce the contract to make a certain testamentary disposition of property have already been given.

Without the necessity of considering or deciding whether the paper executed by Alexander Bisson and Elizabeth F. Bisson, his wife, on the 20th of June, 1855, was a will or not, it is perfectly clear that it expressed the understanding and agreement between those people at that time concerning the disposition of their property after their death.

If, therefore, it was founded upon sufficient consideration, a court of equity would sustain the same and decree its enforcement. Thus, it will be perceived, that it is immaterial (if the above statements of law are correct) whether the paper in question is a will, or is an instrument of proof concerning a contract or agreement. In either event, the persons to be benefited would have a cause of action respecting this property, and if they could prove that the parties (husband and wife) upon legal consideration had agreed that their respective properties should go in a certain way they could obtain an enforcement of that agreement.

It may be that during the lifetime of both Alexander and Elizabeth Bisson either could have rescinded this agreementcall it a will, or call it a contract, or an instrument of proof. tending to prove a contract. But I am clearly of opinion that whatever name should be properly used to characterize this paper, it proves, or tends to prove, an agreement between the parties signing it to dispose of their property in a certain way which a court will enforce if made upon legal consideration, and if it be true and proven that at the time the paper was executed, and at the time of the death of Alexander he was possessed of personal property or real estate which was taken over and used by Elizabeth, his wife, by virtue of the probate of this paper as his will, the agreement thus evidenced has sufficient legal consideration to support it, and the rights under it will be enforced.

If, for instance, Alexander was a man of means, and Elizabeth had the four lots which were in her name at the time of the making of the paper on the 20th of June, 1855, and they made this paper, which, as they said was to make a final settlement respecting their properties, and he died first, and she took under the terms of this paper which was probated as a will all of his personal property, and either used it (if it were held that under the terms of the probated will she was entitled to do so), or used it for life (if the narrower estate was held to be vested), I cannot believe it possible that any court would thereafter permit her, under these circumstances, to rescind or repudiate her part of the bargain.

As stated in a previous portion of this opinion, there is no proof before me as to the financial condition of Alexander Bisson either at the date of the making of the paper-writing of June 20th, 1855, or at the time of his death and when his will was probated in December of 1859. I do not decide, because I do not have to and do not desire to decide, anything excepting that which is necessary, what the law would be if proofs in this case disclosed that he had no personal property of any sort at the time of the making of the paper or at the time of his death. He undoubtedly had title vested in him to the two lots Nos. 195 and 204, and Elizabeth, the wife, under the probated will, undoubtedly would have the right to the enjoyment of the rents, issues and profits from those two lots for life. She attempted much more than this, because she included them in a conveyance made by her in 1864 to an intermediary who conveyed to her new husband Dallier.

It should be constantly borne in mind that the real parties in interest under the paper of June 20th, 1855, are not before the court, and are not bound by anything herein. Therefore, even if there were proof with respect to the situation, I doubt whether it would be proper for the court to make a finding upon these proofs in favor of the merchantability of the title and force it upon the defendant.

It might well be that proofs submitted between these strangers would show one state of facts, while proofs adduced in a suit in

which the beneficiaries designated in the paper of June 20th, 1855, were parties would show a very different state of facts. However, I am not called upon to decide what in a case in which such proofs were present.

present here.

should be done

They are not

Under the circumstances, therefore, it seems to me clear that this court should not force the defendant herein to accept this title. It is not shown to be merchantable in the case at bar. The paper of June 20th, 1855, if supported by legal consideration, evidences that which a court of equity will enforce. I purposely do not characterize the paper—that is, I do not hold because it is not requisite that I should, whether this paper is a will probatable upon the death of both makers, or whether it is a contract which, upon proof of sufficient consideration, will be enforced, or whether it is an instrument of proof evidencing a contract. In either or any event, it is sufficient in this suit to affect the merchantability of the title in question. It is sufficient upon which to found a bona fide claim on behalf of the persons in whose favor it runs, which, if supported by proofs as to consideration, &c., would entitle them to relief.

Under these circumstances, I am entirely clear that a court of equity should not hold the title merchantable and force it upon the defendant.

In the brief of the complainant there was a heading, without argument or authority, that the complainant had good title to the premises by adverse possession. The proofs upon this point are so slight as to be practically negligible, and I took occasion to inquire of counsel for both parties whether they desired to press this contention further, and they both informed me that. they did not. I cannot see that there are sufficient proofs in this case to make it worth while to discuss this question.

I will advise a decree in accordance with these views.

1. The only office of a written objection to the confirmation of a sheriff's sale in foreclosure, under act March 12th, 1880 (Gen. Stat. 1895 p. 2111 § 45), and court rule 205, is to urge the overthrow of the sale on the sole ground that the property did not bring the highest and best price obtainable, and an attack on the sale on any other ground must be made the basis of an independent action by bill or petition and any effort by the purchaser to be relieved of his purchase must be by an independent proceeding and may be by petition filed before the date fixed for the confirmation of the sale.

2. The court, on the hearing of the petition by the purchaser at a mortgage foreclosure sale to be relieved of his purchase, filed before the date fixed for the confirmation, must treat the sale as if it were, or were about to be, confirmed in the absence of anything to show that the property did not bring the best price obtainable.

3. A purchaser at a judicial sale is invested with a definite legal right, recognized and enforced by law, and of which he cannot be deprived except on some legal or equitable ground, and in those cases in which confirmation is required the right is subject to be defeated by the court's refusal to confirm.

4. Where the judicial officer observes proper legal formalities at a judicial sale, and strikes off the property to a purchaser, who thereupon signs the conditions of sale, thereby entering into a contract to purchase the property at the price named, the situation is the same as if the contract were between private parties voluntarily entering into a contract of sale and purchase.

5. A sheriff's deed of land sold at a judicial sale relates back to the time of the contract of purchase entered into by the purchaser on the officer striking off the property to him at a public sale, though the deed is not to be delivered at once, and though the purchaser is not entitled to possession until he secures his deed.

6. The legal title does not vest in the purchaser at a judicial sale until the delivery of the deed, and in the meantime the property is held in trust for him, and the beneficial ownership of the property is vested in him, so that any increase or decrease in value inures to him.

7. The purchaser at a judicial sale, who on the acceptance of his bid executes a contract to purchase on the conditions of the sale, acquires

thereby an equitable interest in the property, so that a loss occasioned by the destruction of a building on the land occurring thereafter, and before the confirmation of the sale, falls on him.

On petition of Thomas Gormley. Heard upon petition and affidavits.

On the 21st day of October, 1909, the sheriff of Hudson county, New Jersey, held a sale under a writ of fieri facias issued in the above-entitled suit. At that sale the property was struck off to Thomas Gormley, the petitioner, who bid $2,300. The conditions of sale which he signed provided, among other things:

"First. The property will be sold to the highest bidder, subject to confirmation by the chancellor.

"Second. Ten per cent. of the purchase price shall be paid when the property offered is struck off in default whereof it may be put

up again and sold immediately.

*

**

“Third. The balance of the purchase-money shall be paid on the fourth day of November, A. D. nineteen hundred and nine sheriff's office.

*

at the

"Fourth. The deed will be delivered at the above time, upon compliance by the purchaser with these conditions, provided said sale is confirmed as aforesaid.

"Fifth. The purchaser will be held bound by the purchase, whether he attends to receive the deed and comply with the conditions of sale or not. If he does not so comply with them the property may be again advertised and sold, or the purchaser may be held liable for his bid, at the option of the sheriff. In case of re-sale at a less price than the former bid with interest and expenses, the former purchaser will be held liable for the deficiency, to meet which, the money paid by him shall be retained and applied by the sheriff.

"I have bid off the property above described for the sum of twenty three hundred dollars, and agree to comply with the above conditions of sale."

The property to be sold was accurately described in a paper annexed to and forming part of the conditions signed by the purchaser.

On the night of the day upon which this sale took place a house standing upon the mortgaged premises was destroyed by

fire.

This is a petition by Thomas Gormley, the purchaser at the sheriff's sale, praying to be relieved of his bid, or to have a deduction therefrom of the amount of loss occasioned to the prop