6 Watts 140 | Pa. | 1837
The opinion of the Court was delivered by
Under a testatum writ of levari facias sued out of the supreme court at Philadelphia, upon a judgment sur mortgage, at the suit of Frederick Pigou, for the use of Thomas Chambers, administrator, cum testamento annexo of the late Thomas Duncan, Esq., against the administrators of the late John Carson, Esq., deceased, directed to the sheriff of Dauphin county, within this district, commanding him to levy the amount of the money therein mentioned, by a sale of the land therein described; the sheriff, after having given due, and timely notice of the time and place of sale, returned the land sold by him to Mr Chambers, the plaintiff, for 6410 dollars, he being the highest and best bidder therefor. An application has been made by the defendants, the
Five exceptions have been filed against it, which will now be considered and disposed of.
The first and third, being in part the same, will be considered together. The first js, that “ the plaintiff in the execution, Thomas Chambers, who became the purchaser, having the control of the mortgage in favour of the Farmers and Mechanics’ Bank, the first lien on the property sold, and to which it was supposed to be sold subject, did not communicate the fact that interest had been paid on that mortgage, until within about a year of the time of sale. The concealment of this fact, by the purchaser, was a fraud on the other bidders, and enabled him to get the property at a sacrifice.” And the third exception alleges, “ that it was the duty of the plaintiff, claiming the control of the mortgage in favour of the Farmers and Mechanics’ Bank, to have made known its amount to the bidders on the day of sale, if the property was sold subject to it, and whether the property was selling subject to it or not.”
In order, however, to determine whether these exceptions or any of the others filed, ought to have any effect upon the sale, it may be proper to state first, the circumstances attending the giving of the mortgage therein spoken of, to the Farmers and Mechanics’ Bank. In the latter end of 1820, or beginning of 1821, some time after the death of John Carson, Esq., the mortgagor to Frederick Pigou, the personal estate of Mr Carson not being sufficient for the payment of his debts, his administrators were desirous of raising money, by giving a mortgage on the real estate of the deceased, to meet the payment of the claims of some of the creditors who were pressing it; and accordingly obtained an order of the orphans’ court of Dauphin county in which the real estate lay, empowering them to do so. The- real estate, which the administrators were thus authorized to mortgage, consisted of about three hundred and eighty-three acres of land, two hundred and twenty-eight acres of which, were included in the prior mortgage given to Frederick Pigou, upon which the judgment was had, and the sale complained of here, was made by the sheriff. The late Judge Duncan, being then the owner and assignee of the Pigou mortgage, for the purpose of accommodating the administrators and other children and heirs of Mr. Carson, who were all the children of his sister, and facilitating the procurement of the money, on the 30th of January 1821, agreed in writing under his hand and seal, that the mortgage and judgment of Frederick Pigou, against John Carson, late of Dauphin county, deceased, assigned to him by Thomas Stewartson, as attorney in fact of Pigou, should stand postponed to any mortgage that might be executed to the Farmers and
Now it is complained of in the first exception, that Mr Chambers, the plaintiff, knowing the amount that was due upon the mortgage given to the bank, was bound to have made it known to the bidders at the time and before the property was sold; and because he did not do so, it is imputed to him as a fraud committed on the other bidders, that enabled him to get the property at a sacrifice, and, therefore, vitiates the sale. And again, by the third exception, that it was not only his duty to have made known to the bidders the amount due on the bank mortgage, but likewise, to have advised them whether the property was then about to be sold subject to it or not, and how it was to be sold in that respect.
It is difficult to conceive how a party having become a purchaser of property at auction, can be said to have practised a fraud upon other bidders attending the sale, by his having either done or omitted to do, that which had a tendency to prevent them from bidding as much for it as otherwise they might or would have done. That the owner of the property or other persons interested in its bringing a price equal to its value, might very well be considered as defrauded by such conduct, can be readily comprehended; because they are thereby injured in having their vested rights reduced and diminished. But that other bidders, as such merely, who have no right or interest of any kind whatever, in the property can be injured or affected in their rights by it, is quite a novel idea, if not altogether incomprehensible. That a fraud may be committed on bidders at an auction, is doubtless practicable, but I believe it has never been supposed that it could be effected by
But can the forbearance, of Mr Chambers to mention, at the time of sale, the amount then due on the bank mortgage, be considered a fraud upon any one interested or concerned in the matter? What right have the administrators of Mr Carson to make this objection? The bond and mortgage were given by them, they were personally bound for the payment thereof; and who had a better right to know what was paid and how much still remained unpaid than they? They must be presumed to have known the precise amount due with more certainty than Mr Chambers can be supposed to have known it. One of them was present attending the sale, and yet he now sets up this objection to it. It would not seem to come with much grace from him seeing it was in his power to have told himself, how the matter stood, had he deemed it material to the interest of himself or the other heirs, better than either Mr Chambers or his attorney could. It is, therefore, perfectly idle, if not worse, to talk of Mr Chambers’ being bound to proclaim at the time of sale the amount actually due on the mortgage; and that because he did not do so, to charge him with a fraud on account of it.
The second exception, however, is of a still more extraordinary character, if possible, than the two already noticed. By it, it is alleged, “ that it was the duty of the sheriff to have made known the fact, whether he was not selling the property, subject to the mortgage in favour of the Farmers and Mechanics’ Bank, for 6360 dollars, and interest, which was not done.” I think it likely, that it never was before heard of, that it was the duty of the sheriff to examine into and to know before he sold real estate taken in execution by him, whether there were any incumbrances upon it or not, besides the one for which the sale was about to be made; and then not only to make them known at the time of sale, but to decide and give notice to those in attendance, who maybe disposed to bid, what will be the legal effect of his sale; whether it will 'discharge the property from all or any of the other incumbrances in case such exist; or whether it will still remain liable to them, and if to any and not all, which of them. If such were his duty
The fourth exception is, “that if the property was not sold, subject to the payment, by the purchaser, of the mortgage in favour of the Farmers and Mechanics’ Bank in addition to the sum bidden, there was a mistake and misapprehension among the bidders, of the amount they would be liable to pay for the property, which deterred them from bidding a sufficient price for it.” In answer to this, it is sufficient to say that if any misapprehension, such as is here mentioned, existed on the part of any persons dis
Whether the property has been sold for as much money as might be had for it, on a resale to be made by the sheriff, it is impossible to say: for it does not appear from the depositions of the witnesses, that any higher price would have been given by any in attendance upon the sale, under any disclosure of facts and circumstances, that could have been made, or knowledge that could have been possessed in respect to them, on the subject. No one certainly has testified that he would, in such case, have given more. Nor has any one testified, that he Avould give a higher price on a resale. The counsel for the applicants, to be sure, has asserted that a much higher price would be obtained. Counsel, however, not infrequently enter into all the feelings of their clients, and thus permit their wishes, sometimes to deceive their judgments; and think it cannot fail of being so, because they wish it. We lmow from some experience, that second sales of the same property, for the same cause, have perhaps, more frequently brought less, than more money, excepting in cases where the first have been set aside for, and on account of fraud. But in the present case, there is not the slightest pretence for making the imputation of fraud; and it was rash, to say the least of it, to indulge in it here. We feel ourselves bound in justice to the plaintiff, who is the purchaser in this case, as well as to the sheriff, to say that the sale on their parts, appears to have been conducted and made with all perfect fairness.
This being the case, then, even if the price obtained for the property were inadequate, it would not be a. sufficient ground for setting the sale aside. If a sheriff’s sale be fairly made,- though the price may be inadequate, it is our duty notwithstanding, if the purchaser, who has thereby acquired a vested interest, require it, to enforce the perfecting of the title by compelling the sheriff to execute and acknowledge the deed of conveyance. In the Les. of Murphy v. M’Creary, 3 Yeates 405, 6, where the lessor of the plaintiff claimed through a sheriff’s sale made under an execution against the former owner of the land', and on the trial it being objected against the sale, that the land was struck off at a great
The fifth exception has been abandoned, in consequence of an agreement in writing filed by the purchaser in favour of the persons therein named.
The application to set the sale aside, is therefore refused, or the