134 Ill. 606 | Ill. | 1890
delivered the opinion of the Court:
It will be seen from the foregoing statement, that the grounds upon which the plaintiffs in error oppose the confirmation of the master’s report of sale in the Circuit Court were, that by the conduct of’ the receiver, Peters, and the purchaser, Bogue, they were deceived and misled to their injury; that the agreement between said receiver, and the firm of Bogue & Hoyt, together with the previous negotiations between George M. Bogue and Willard T. Block, representing the Grant Locomotive Works, were calculated to stifle bidding and prevent competition at the sale, and that the property was bid off by said Bogue at a grossly inadequate price.
The well settled rule of law in this country is, that before the approval of a judicial sale, a resale will he ordered, if fraud or misconduct in the purchaser, the officer conducting the sale, or other person connected therewith, is shown, or if it is made to appear that a party interested had been surprised, or led into a mistake, by the conduct of the purchaser, officer, or other person connected therewith. But courts will not refuse to confirm a judicial sale, or order a resale, on the motion of an interested party, merely to protect him against the result of his own negligence, where he is under no disability to protect his own rights at such sale.
Where a judicial sale has been conducted in the usual manner, and the purchaser is a stranger to the order of sale, mere inadequacy of price will not justify a court in vacating a sale, so as to deprive the vendee of the benefit of his purchase, unless the inadequacy is such as to amount to evidence of fraud. These principles seem to be so universally recognized by the courts of this country, that no authorities need be cited in support of either of them.
The evidence in support of and against the objections was: introduced by way of affidavits. From these it appears that, upon the affirmance of the decree of sale by this court, and the overruling of the petition for a rehearing, it was understood by all parties that the master should proceed to advertise, and offer the premises for sale, as directed by the decree. The receiver, through the firm of Bogue & Hoyt, began at, once to make efforts to find a purchaser, at a price which would insure a sale, and secure the payment of his claim. This was fully understood by the objectors. Mr. Paddock, one of their solicitors, in his affidavit, says that H. B. Bogue informed him on November 16,1889, that his firm represented the interests of the complainant, with reference to the approaching sale of section 21. Henry A. Barling, in his affidavit of January 9, 1890, says, that H. B. Bogue told him that his firm had been employed to represent the interests of the complainant, and that they were about to make an effort to induce parties to bid at such sale; that he wished to know whether the sale would take place, so that he might not waste the time of his firm and of himself in the effort to procure purchasers under the decree. The affidavit of Robert W. Hyman Jr., shows that he also understood that George M. Bogue was acting for Peters, the receiver, in the matter of the .approaching sale.
It also appears from the evidence that the firm of Bogue & Hoyt, some time prior to the sale, endeavored to sell the claim represented by the receiver, to the representatives of the Robinson estate, but they refused to purchase it, the son of Mrs. Hetty H. R. Green, who seems to have been conducting the business on her behalf, saying, “that he did not believe that $600,000 or anywhere near that sum could be realized from the premises; that Bogue & Hoyt need not flatter themselves that the complainant would ever get a dollar out of his claim; that nothing would be paid for it by his people.” It also appears from the evidence that the administrator of Hyman’s •estate was unable or unwilling to become a purchaser at said sale, and while he assisted in advertising the property, and .made efforts to find bidders, his efforts were unavailing.
The evidence further shows, that George M. Bogue, having previously given the objectors to understand that his firm was acting for the receiver, did, on the 20th day of December, 1889, negotiate with one Willard T. Block, who represented the Grant Locomotive Works, to purchase said property for that company, and the written agreement of that date between the receiver, by his attorneys, and Bogue & Hoyt, was entered into in pursuance of such negotiation; that said Bogue bid in said property for said company, and that objectors were, at the time of the sale, ignorant of any arrangement between the receiver and said locomotive works with reference to said sale; that a few days prior to the sale, at a conference of the parties and their solicitors, it was stated by one of the solicitórs for the receiver, with the assent of George M. Bogue, in substance, that the sale would take place, or that the receiver would have a bidder at the sale who would comply with the .requirements' of the decree. Plaintiffs in error claim, that the statement went farther, and that they were, in the same-connection, assured that a bidder would be present who would purchase said property at a price sufficient in amount to satisfy the receiver’s claim in full, under the terms of the decree.
It was admitted that all parties in interest were present at the sale, and that the representatives of both the Robinson and Hyman estates were personally solicited by the master to raise the bid of $602,000, which they declined to do.
Bach party introduced the affidavits of various real estate dealers doing business in the city of Chicago, as to the cash value of said section 21, at the date of the sale. Those oh behalf of the objectors fixed the value at from $750,000 to $800,000. At least an equal number on behalf of the respondents swear that $602,000 was a fair cash price, and that in their opinion, the sale was a good one. The property was extensively advertised. It is not denied that the sale was fairly conducted on the part of the master, nor is any complaint made of the conduct of the purchaser or any one else at the time of the sale. In fact objectors admit that they were content with the result, until they learned through daily papers the next day, of the transaction between the receiver and the Grant Locomotive Works.
Applying the foregoing rules of law to these facts can it be said that the Circuit Court erred in refusing to set aside said sale? Were - the objectors misled, or taken by surprise, by the representations of the receiver, or of Bogue & Hoyt, his agents ? It is contended that, having been led to believe that George M. Bogue was acting for the receiver, and that a bidder would be present at his instance, who would bid for said property an amount sufficient to satisfy the bank claim, he had no right thereafter to make an arrangement' with the locomotive works to purchase for it, without giving notice to objectors. This contention seems to be based, in part at least, upon the assumption that there existed between the parties a trust relation, imposing upon the receiver some duty to the objectors in relation to the sale. This is wholly untenable. Whatever may have been the previous relations between the receiver and the Robinson estate, by the terms of the decree they were placed in antagonistic positions. Unless the receiver was able to make the premises bring at least $600,000, all benefit of the decree in his favor would be lost, and his bill dismissed at his costs. In that event the Robinson estate would gain, by a failure to consummate the sale, all that the trustees of that estate had contended for in the protracted litigation which had gbne before. While it may be true that there was no disposition to place obstructions in the way of the execution of the decree, it can scarcely be doubted, in the light of all the facts disclosed by this record, that those most directly interested in the Robinson estate, at least indulged the hope that no sale would take place. Nor can it be said that the receiver owed any duty to the Hyman estate with reference to the sale, beyond the duty of fair dealing which he owed to it and to all the other parties concerned.
Viewing the receiver then as relieved from any peculiar obligation to the other parties in interest growing out of any trust relation, was his conduct such as violated those principles of fair dealing which should obtain as between parties who are at liberty to deal with each other at arm’s length ? As bearing on this question the only substantial conflict in the evidence is as to whether or not objectors were informed, at the meeting of December 17, that the receiver would have a bidder at the approaching sale who would bid enough to insure the payment of his claim. In other words, whether or not, from what was said by the solicitor of the receiver, in that interview, objectors had a right to expect that the receiver, or some one in his interest, would bid a sum amounting to about $760,000. Upon this issue of fact the clear preponderance of the evidence is against the objectors. Not only is their contention on this point directly disputed by the affidavits filed on behalf of the respondents, but it is wholly inconsistent with their conduct at and immediately after the sale. If it be true, as they claim, that they had been assured that the receiver, or some one for him, would bid a sum sufficient to pay the bank claim, which would require, as we have seen, .something over $760,000, how is it possible to explain their conduct in standing by and allowing the property to be struck •off for only $602,000, without objection, and with no assertion of their alleged understanding, or attempt to bid the property up' so as to compel the purchaser to pay the amount •agreed upon? Instead of this, they seemed and expressed themselves as satisfied with the sale at the price bid, úntil they learned, on the following day, of the contract between the receiver and the Grant Locomotive Works.
But if it be admitted that, from the interview of December 17, they had a right to expect a bidder on behalf of the receiver, to the amount of more than $760,000, how can it be said that they were misled, to their prejudice, by the fact that •George M. Bogue afterwards contracted to and did bid in the property for the Grant Locomotive Works ? . Under the contract of December 20, Bogue & Hoyt,- on behalf of the locomotive works, were bound, if necessary, to bid the property up to the very amount which they say they understood the receiver would bid. What difference could it make to them whether Bogue was bidding on behalf of the receiver or for the Grant Locomotive Works ?
But is there anything in the written agreement of December 20, when viewed in the light of the attendant facts, of a fraudulent character ? Peters undoubtedly had the right to use ■any lawful means to induce a bidder to appear at the sale and bid, in his interest. To deny him that right would be to take away from him the fruits of his successful litigation. The evidence clearly shows that the objectors understood that the sale depended upon the success of his efforts, or those of his ragents, to find such a bidder. He clearly had the right to use Lis claim as best he could to induce a purchaser to thus bid. Suppose he had agreed to take $50,000 for it, or to give time on it to a purchaser, or to sell it on any other terms favorable to a purchaser, and thereby secured a bidder. Would any one say that by so doing, he practiced a fraud upon other parties interested in said premises ?
On the part of the Grant Locomotive Works, (the real purchasers of the claim and bidders at the sale,) the contract of December 20, amounted only to an agreement.on their part to become a bidder at the sale, and to bid at least the required $600,000, and after that to take chances against all other bidders, and to run the property up to $760,912.26, if compelled "to do so by competing bidders, and if it became the purchaser of the property, to take the receiver’s claim at its face value. We are, unable to perceive wherein such a" contract tended in any way to prejudice the rights of other parties interested in the land.
But objectors say that the arrangement was secret, and designedly kept from their knowledge. It can scarcely be contended that it is the duty of a prospective bidder at a public sale, to publish his intended bid. If the terms of said con-tract bad been made public, the representatives of the Bobinson estate and the agents of Mrs. Green, who were all present at the sale, .would undoubtedly have been enabled to compel the locomotive works to pay something over $760,000 for the property, or forfeit its contract with the receiver. Such publication would doubtless have been greatly to their advantage, but it by no means follows that keeping the contract secret was a fraud úpon them.' It was no more a fraud than is the concealment by any bidder of the ultimate sum he will be disposed to bid, in case the property is run up by compet- " ing bidders. It is difficult to see how a public sale between competing bidders could ever be sustained, if one interested in the property sold, may insist that he was taken by surprise,, and prejudiced because he had not been informed of the amount to which bidders would run the property.
It is again urged with much earnestness, that the arrangement between the purchaser at said sale and the receiver was calculated to prevent competition in the bidding; and was therefore fraudulent. It is insisted that the evidence shows that the receiver himself, or some one in his interest, intended to bid at the sale as objectors were given to understand, on the 17th of December, and that the contract of the 20th had the effect to take him out of the list of bidders. Also that. Bogue & Hoyt, who were previously engaged in trying to find a purchaser for the property, were, by that arrangement, induced to make no further efforts in that direction. In our view of the law, if the facts be conceded as they are claimed by the objectors to exist, still they establish no such fraudulent conduct in stifling bidding or preventing competition as-would invalidate this sale.
Suppose it be admitted that the receiver had the ability, and had intended, if it became necessary, to bid in said property at the $600,000, or to run it up to the full amount of his claim, and had so informed objectors. Would that in law have deprived him of the right to afterwards induce a third person to-become the - purchaser in his stead ? Could it be said under such circumstances, that a contract by him with such third party to induce him to bid, in any way tended to prevent others-from bidding ? In this case it is clear that the receiver could not purchase the property, for want of legal ability as receiver, and for want of financial ability as an individual, and all parties understood that a sale of it by the master depended upon the efforts of his agents Bogue & Hoyt to find some one who would purchase it. Suppose it be admitted that on the 17th of December, Bogue & Hoyt had in mind some one who would, if necessary, become a purchaser, and that objectors were at' that time so informed, might they not afterwards legally contract with the locomotive works to become the purchaser if they could do so on terms more favorable to their client ? It must be borne in mind that there is an entire absence of proof in this record tending to show that there was any agreement whatever that the receiver or any one else should not bid at said sale. On the contrary, all that the receiver or his agents did was in the direction of procuring a purchaser for the property on the terms required by the decree, and if possible secure the payment of the bank claim in full. As to the contention that the contract with the locomotive works had the effect to induce him and his agents to cease their efforts to find other bidders, it need only be said, that having accomplished their object, no one had a right to expect further efforts from them.
The position contended for by plaintiffs in error amounts to saying that the success of the efforts of the receiver or his agents in finding a satisfactory bidder, should work its own defeat.
There is however nothing in the evidence as to what was said by the solicitor of the receiver, or Bogue & Hoyt, prior to December 20 inconsistent with the theory that their statements to the effect that the receiver would have a bidder at the sale, were made on the faith of negotiations then pending with the Grant Locomotive Works, which were consummated by the contract of December 20. Nor is there anything in either of the affidavits filed in the court below, unless it be in that of Willard T. Block, from which the slightest inference can be drawn, that the receiver or those acting for him, had at any time the remotest prospect of finding a bidder except in the locomotive works. Hamilton B. Bogue and George M. Bogue both swear that no arrangements had been concluded for a bidder until the 19th of December, and the latter says in his affidavit, that it was only because he felt assured that such arrangements would be consummated, that he authorized George W. Smith to make the statement which he did make on the 17th of December. The affidavit of Block shows that George M. Bogue had been endeavoring to induce parties who would be connected with the locomotive works to become purchasers of section 21, and while he says that Bogue informed him in the interview of the 20 th of December that he (Bogue) would have a purchaser at the sale, unless outbid, yet we do not regard that statement, when considered in the connection in which it was made, as indicating more than that he was making efforts to obtain a bidder and expected to succeed.
After a careful consideration of all the facts proved in this ease, we are convinced that the efforts of the receiver and his agents, instead of tending to prevent bidding, or to destroy competition at the sale, were calculated to and did in fact produce a purchaser. While the decree was in favor of the receiver, it imposed a heavy burden upon him, in providing that his bill should be dismissed unless the property sold for §600,000 in.cash. We have no doubt that it was through the efforts of Bogue & Hoyt on his behalf that a purchaser was obtained, nor is there room for serious doubt that, but for the contract with the Grant Locomotive Works, no responsible bidder 'for so large a sum would have appeared at the sale.
The point that the property sold at a grossly inadequate price is not seriously insisted upon, and could not well be under the proof. The sale was extensively advertised, a large number of responsible real estate dealers were present, the land was offered in subdivisions most likely to invite bidders. There is no proof found in the record from which it can be inferred that at another sale a greater sum could be realized. In fact, there is an absence of proof showing that it would again sell for even $600,000.
While courts should carefully guard judicial sales, against all attempts to depreciate the value of the property sold, or to prevent full and fair competition, due regard must also be had to the policy of the law to give stability to such sales. No sufficient reason is shown in this case for disturbing the sale reported by the master, and the order of the Circuit Court confirming said sale was proper.
It is assigned for error that the court below overruled the motion of objectors for leave to place George M. Bogue and Willard T. Block on the witness stand and examine them orally. There was in this no departure from the usual practice in such cases. Objectors wholly failed to show that a full and fair presentation of their case could not be made in that way. But it does not appear that the objectors were in any degree prejudiced by the ruling of the court in that behalf. No attempt whatever was made to show what they expected to prove by Block in the proposed oral examination. As to said Bogue, Mr. Paddock, one of the solicitors for the objectors, in his affidavit, states as follows: “Affiant expects to prove by said Bogue, if he should be required to testify in this case, that said Bogue, prior to the date of said contract' of December 20, was, to the knowledge of complainant, acting as the agent and under the direction of the parties mentioned in said letter of request, or some of them, who furnished the said Bogue the money mentioned in the said agreement of December 20, to be expended by the said Bogue in the purchase of the said land, and affiant knows of no other witness than the said Bogue by whom such facts can be adequately and fully established.”
We are unable to see how such facts were material, and especially how they would, if established, have tended to sustain the objections.
Some other objections to the decree of confirmation are urged by the plaintiffs in error which we do not deem it necessary to notice further than to say, that we have examined them with care, and have reached the conclusion that none of them are well taken. The decree of the Circuit Court will be affirmed.
Decree affirmed.
