Birney's Appeal

| Pa. | Nov 8, 1886

Mr. Justice Sterrett

delivered the opinion of the court,

Each of the parties to this contention was a .creditor of William Davies, Jr. & Co., whose leasehold, sold by the sheriff, produced the fund in court for distribution. The appellant, Thomas Birney, had a judgment against the firm for over $3,000, to indemnify him as surety &c., and also a mechanics’ lien for $185.56, against the rink erected on the leasehold. The appellee, W. S. Barker, had a mechanics’ lien against same building for over $4,000. By virtue of an execution issued on Birney’s judgment, the leasehold premises were levied on and finally sold to Barker for $1,500. When the property was first offered for sale Barker, by his counsel gave written notice that the purchaser would be required to pay in cash to the sheriff or to himself; and then bid the property up to $4,400. Birney bid $50 more, and adjourned the sale. When it was offered the second time, the notice was repeated. Barker bid $3,100; Birney bid $500 more, and again adjourned the sale. The third time it was offered, the notice was not repeated ; Barker bid $1,000, Birney bid $50 more, and then stayed his writ. At the fourth and last sale, on the alias writ, Barkér’s counsel in his presence gave notice “that the rink would be sold subject to his, Barker’s, mechanic’s lien ”; and thereupon it was sold to him for $1,500, which sum, less costs, is the fund for distribution. This is substantially what occurred, as found by the Auditor, when the property was offered for sale by the sheriff.

In view of the notice given by Barker at the last sale, and his purchase of the property in pursuance thereof, appellant’s contention is that he should not be permitted to participate in the distribution.

As found by the learned Auditor, it does not appear from the evidence what was the object of Barker’s announcement that the property would be sold subject to his lien, or under what view of the law or facts it was made, or what effect, if any, it had on the sale. It cannot be doubted however that the obvious effect of the notice was to mislead or deter bidders, and thus lessen the price of the property, and we think the result shows that such was the case. When it was first offered for sale, Barker’s bid, as we have seen, was $4,400. He says in his testimony; “ At the first sale I bid either $4,400, or $4,450. It was a Iona fide bid. I would have paid the money in. The second time my bid was $3,500. I think Mr, YanYoorhis bid over me. I w.as prepared to take and pay the money. The third time I think my bid was $2,000. It was bid over me by Mr. YanYoorhis. He then stayed the writ. I was prepared to pay the money in on that bid.” He denies, however, that the notice given at the last sale differed from the written notice given at the first and repeated at the second sale; but, the Auditor found otherwise, and it must now be accepted as true that his counsel, in his presence, did make the announcement found by the Auditor, and that appellee then and there became the purchaser of the property for $1,500, nearly $3,000 less than he bid and was prepared to pay for same, at the first sale. The inference is neither strained nor unfair that this result was brought about, in great part at least, by the verbal announcement made at the last sale. If appellant, in making that announcement had any laudable object in view, it would have been in order for him to show it. In the absence of any explanation, it is not unreasonable to infer that his purpose was to secure the property at an undervalue, and then, to the detriment of the defendant in the execution, as well as his creditors, claim the greater part of the proceeds of sale as applicable to his own lien. To sanction such a transaction would be to encourage the practice of deception, trickery and fraud, of which there is already too much in judicial sales. As was said in Power v. Thorp, 92 Pa,. St., 346, it will not do to allow a purchaser to control an official sale, make what representations he pleases in order to cheapen the property, and then, after he has obtained it on his own terms and at his own price, permit him to shelter himself from the consequences of his own fraud, under the technical rules applicable to judicial sales. In the face of his own announcement that the property would be sold subject to his lien, appellee became the purchaser thereof at a greatly reduced price — about one third of the sum he bid, and says he was prepared to pay at the first sale. Under these circumstances, and with no attempt to explain his conduct, there is no hardship in holding him to the terms of sale, officiously dictated by himself, with the view, doubtless, of gaining an undue personal advantage at the expense of others.

Decree reversed at the costs of appellee, and record remitted with instructions to distribute the fund in accordance with this opinion.