46 N.Y.S. 945 | N.Y. App. Div. | 1897
The action was brought for the specific performance of an alleged contract for the purchase of land made by the defendant. The property consists of a house and lot in West Forty-first street belonging to the plaintiff. On the 6th day of May, 1896, with other lands belonging to the plaintiff, it was put up to be sold at. auction. There were three pieces of land in all, and the one in question was the last of the three to be sold. The first two were bid in for the plaintiff, but the fact that they were so bid in was. not. made public at the time of the-sale. After those two pieces had been struck off, the third piece was put up for sale by the auctioneer. It was started at $12,000 and was bid up to $27,-000, at which sum it was struck off to the defendant. How many bidders there were does not precisely appear, nor is it certain who made the last bid-before the one at which it was struck off to the defendant. It does ■ appear, however, without contradiction, that one of the sons of the plaintiff, who was present at the sale, bid for the plaintiff upon the property, and that he bid up at least as high as $20,000. As to
•Upon authority this question is not entirely free from doubt, ■although the preponderance, both of .the cases and of the text writers, is in. favor of the conclusion reached by the court below. Tn England for many years the courts of common law and of equity were irreconcilably opposed upon this question. It was held by the •courts of common law that the employment of a puffer or by-bidder •at an auction sale rendered the sale void, so that the person to whom the property was struck off could pot be compelled to perform his contract. The rule was laid down first by Lord Mansfield in the ■case of Bexwell v. Christie (Cowp, 395), and his judgment in that regard was followed consistently by the courts of common law until the matter was settled by act of Parliament.-' Strangely enough the courts of chancery in England adopted another and less stringent .rule. It was held by these courts under the lead of Lord Lough- borough, in the case of Conolly v. Parsons (3 Ves. Jr. 625, n. 1) that the mere employment of a puffer for the purpose solely of protecting the interest of the owner and not'for the purpose of improp
In many of the States the same rule has been adopted. In the ■■State of Pennsylvania there Was some fluctuation in the cases, the -Supreme Court at first holding that the employment of a puffer did not invalidate the sale if it was done solely with .the intent of protecting the interest of the owner. (Steele v. Ellmaker, 11 S. & R. 86.) This case, however, was subsequently overruled, and it was held by the Supreme Court of that State that the employment even ■of a- single puffer, vitiates the sale (Pennock’s Appeal, 14 Penn. ■St. 446 ; Staines v. Shore, 16 id. 200), and that must be now regarded as the settled law of that State.
The following cases may also be cited as establishing the same rule: Towle v, Leavitt (23 N. H. 360); .National Bank v. Sprague (20 N. J. Eq. 159); Baham v. Bach (13 La. 287); Smith v. Greenlee (2 Dev. 126); Moncrieff v. Goldsborough (4 H. & McH. 281); ■Curtis v. Aspinwall. (114: Mass. 187); Hartwell v. Gurney (16 R. I. 78); Peck v. List (23 W. Va. 338). In the two cases last cited the authorities are fully collated and the result seems to be that the rule stated above is thoroughly established by a great preponderance ■of authority in this country. The cases upon the subject are collected in the 3d volume of the American and English Encyclopaedia of Law, 2d edition, at page 504, et seq.
The opinion of the text writers seems to agree with the majority • ■of the authorities. Kent, in his Commentaries (Vol. 2, p. *537), while stating that the result :of the authorities, perhaps, does not sustain the rule laid down by Lord. Mansfield, gives as his own opinion that it is the more just and salutary doctrine. In sound policy,, he says no person ought in any case to be employed secretly to bid
Upon a consideration of all the authorities and the text writers, we are of the opinion that the only safe rule is the one announced by Lord Mansfield. It is essential in sales of this kind that there should be the utmost good faith, and the employment by the owner of underhand means to enhance the apparent value of his property is not warranted by any principle of sound morality. When it appears that any such steps have been taken by him it is not necessary for the person insisting upon the invalidity of the sale to show that any harm resulted to him from the improper act. If the fact that no harm resulted is material at all, and we cannot see how it is so, the burden of proving it should be upon the person who has employed the puffers to bid up the price of his property. But the sounder rule, as we think, and the only safe rule to be applied in
For the reason that puffers were employed upon this sale we affirm the judgment, without passing upon the other questions decided by the court below or presented by the respondent in his points.
The judgment must be affirmed, with costs to the respondent.
Van Brunt, P. J., Patterson, O’Brien and Parker, JJ., concurred.
Judgment affirmed, with costs.