100 N.J. Eq. 396 | N.J. Ct. of Ch. | 1927
This motion is to strike the bill for want of equity. For the purposes of this motion the defendant admits it to be true as alleged, that he and the complainant Mrs. Brant, being tenants in common, in equal shares of one and thirty-four hundredths acres of land in the Newark meadows, he filed a bill for partition, and, complainants' solicitor consenting thereto, a decree for sale was entered. The selling master made the statutory publication, and on the day set adjourned the sale one week, no one being present, and on the adjourned day struck off the property to the defendant for $2,000, he being the only bidder. No notice of the sale was sent to the *397 complainant or to her solicitor in accordance with the usual custom of selling masters, nor was either notified of the adjourned day, although the master notified the defendant of the day to which the sale had been adjourned. The complainants' solicitor had co-operated with the defendant, a lawyer, in the partition suit, and after consenting in writing to the form of the decree, delivered it to the defendant, for the purpose of having a selling master designated and having it signed by the chancellor. He expected a notice from the defendant, or from the clerk of the court, of the signing of the decree, and, receiving none, and having heard that the defendant had gone on a two months' vacation, and believing that the forwarding of the decree to the clerk had been delayed on that account, gave no further attention to the matter, relying upon the usual practice of selling masters of forwarding notices of sale to the solicitors of the parties. In the meanwhile, the complainant had arranged with her lawyer to attend the sale, and bid the sum of $4,000, and had arranged for financing the purchase; her solicitor informing her that due notice of the sale would be received from the defendant and the selling master, which he would forward to her. Nothing more was heard by her of the matter until the complainant received a communication from the master asking her to call at his office to receive her share of the proceeds of the sale. At the sale, the defendant represented to the master that lands in the same neighborhood as the land then offered were being purchased by the city of Newark at the rate of $1,500 per acre, but concealed from him the facts that he had offered the complainant $625 for her quarter interest, and $750 to a former tenant in common for his quarter interest, which the complainant later acquired; that the property was assessed by the city of Newark at $3,350, and that the defendant had a purchaser at $4,000. The representation as to the value of the land was made by the defendant to induce the master to believe that the property was worth not more than $1,500 or $2,000, and, believing it, the master sold it to him for the amount of his bid, which the defendant knew to be a grossly inadequate price. *398 The market value of the land was $4,000, and shortly after the sale the defendant sold and conveyed it to a subsidiary company of the Public Service Corporation for that sum, as he had arranged to do before the master's sale. Promptly after the complainant heard of the master's sale, she filed a petition in the cause, praying that the sale be set aside, and the deed to the defendant canceled, and, by a further petition, prayed that the deed from the defendant to his vendee be canceled, and, in the alternative, that the defendant be ordered to account for the profits. Upon the hearing, upon an order to show cause, directed to all interested parties, the court refused to set aside the sale and the subsequent conveyances because the defendant's vendee was a purchaser for full value without notice and entitled to protection as such, and thereupon discharged the order without prejudice to the right of the complainant to file a bill for an accounting; and she accordingly filed this bill for that purpose.
The court had the power to set aside the sale after the delivery of the deed to the purchaser, by petition in the cause.Mutual Life Insurance Co. v. Goddard,