| Ill. | Apr 15, 1858
It is urged that this decree should be reversed, and the order confirming the commissioners’ reports be vacated, because Moss, who holds a senior mortgage, and Pettingill and Bartlett a junior mortgage, on these premises, agreed that the latter would make no defense to Moss’s suit for a foreclosure, and that he would bid the amount of his mortgage on that portion of the premises south of the Peoria and Farmington road, and would release his mortgage to the remainder of the quarter section.
It is a well established doctrine, that any corrupt agreement amongst bidders, which prevents competition at a public sale, is a fraud upon the owner, for which a sale should be set aside. If this arrangement was for that purpose, and had that effect, then these sales should be vacated, and the property resold. Upon a careful examination of the agreement, we can only see, from its terms, that Moss agreed that if the junior mortgagees would interpose no defense to prevent his getting, a decree of foreclosure, he would release a portion of the premises upon which he had the elder mortgage. To him it was desirable to prevent delay, to them to collect their debt without having to redeem from this prior incumbrance. To the debtor it could work no injury, as it subjected the land to sale in smaller lots, of convenient size, which would insure a better price, and the payment of these debts, while, if sold under both decrees and the junior mortgagees had not been able to pay off the prior mortgage, they would not have bid, and after the property was sold the debt might not have been satisfied. There was no stipulation in this agreement" that neither party should bid, but Moss bound himself to bid the whole amount of his mortgage debt upon a portion of the property, and the other mortgagees were left perfectly free to bid more than that amount on that part, and left him free to do the same on the remainder. In the light in which we view this agreement, it' was no more than a release, by the senior mortgagee, of a portion of the mortgaged premises, to the junior mortgagees. And it cannot be doubted that he has such right, and in doing so violates no principle of justice or equity.
It is again urged that the advertisements of the time, place and terms of these sales were not inserted the proper length of time. The notices were each inserted in the newspaper, first on the 21st of June, again on the 28th, and lastly on the 5th of July, and each bore date on the 19th of June, and the sale was made on the 10th of July. From the date of the notices till the day of sale there were twenty-one days; and from the date of the paper, in which they first appeared, there were nineteen days, intervening before the sale. In the case of Pettingill and Bartlett’s decree, it provides for the sale, etc., “after having given notice of the time of said sale by inserting an advertisement of the same, for three weeks successively, in the ‘ Peoria Democratic Press,’ a newspaper printed and published in the town of Peoria, county of Peoria, State of Illinois.” The decree in favor of Moss provides for the sale, etc., “after having advertised the same by putting up notices in three of the most public places in Peoria county, or by inserting such an advertisement for three successive weeks in the ‘ Peoria Democratic Press,’ a newspaper printed and published in the town of Peoria, Peoria county, Illinois.”
In cases of the foreclosure of mortgages without redemption, it has been the uniform practice of the court of equity, in this State, to decree a sale of the property, for the payment of the mortgage debt and other liens, and to pay the surplus, if any, to the mortgagor. This seems to be the practice in most of the States of the Union. And to effect a sale the court must impose the duty upon the master, or upon a commissioner appdinted for that purpose. The court, when it decrees the sale, also fixes the terms and conditions upon which it shall be made, having reference to the interest of all the parties. It is also usual to fix a time within which the mortgagor may pay the debt and prevent a sale. But the terms upon which the sale is to be made, are necessarily, to a great extent, discretionary with the court decreeing it. The master or commissioner is the agent of the court, and derives his authority to act from the decree, and should be required substantially to conform his acts to its conditions and terms.
But on an application to have the report of his proceedings, under the decree, confirmed, the court should not regard mere captious objections. Any slight deviation from the requirements of the decree, which has not resulted in injury to either party, should not be a cause for refusing to confirm the sale. And while it is not the practice to refuse biddings in this State, it is not to be doubted that the chancellor, as elsewhere, has a large discretion, limited only by sound equitable considerations, in the approval or disapproval of sales made by his master. The accepted bidder at a master’s sale, acquires no independent right to have his purchase completed, but is nothing more than a preferred bidder, who proposes for the purchase of the property, depending upon the sound, equitable discretion of the chancellor for a confirmation of the sale by his ministerial agent. Freeman v. Hunt, 3 Dana R. 614; Campbell v. Johnson, 4 Dana R. 186; Owen v. Owen, 5 Humph. R. 355. In determining this discretion, a regard to the stability of judicial sales has necessarily a large influence. This policy has rejected here the practice of refusing the biddings on an offer of an advanced price. But a higher policy, that of maintaining the purity of decretal sales, and of preserving the public confidence in their entire fairness, must prevail over the policy of giving stability to them. And where there has been fraud, accident, mistake or unfairness in the sale, the chancellor should not hesitate to withhold his approval of the sale, by his commissioner.
In this case there was a sale on the day fixed by the notice, at the time and at the place fixed by it, and by the proper person. The notices were inserted three times, once in each successive week, on the same day of each week, and the last insertion some five days before the sale. And while the intention of the court may have been to require three full weeks from the first publication to the day of sale, it was not required in terms by the decree. The notices were returned and filed with the commissioner’s report, and by its approval they were regarded as in compliance with the decree. And the complainant must have so regarded them at the time, and for many years afterwards. In resisting the confirmation of the sales, this was not noticed as an objection in his affidavit, and was not urged in this proceeding until he filed his amended bill, in February,- 1854, ten years and nine months after these sales were approved. This objection is thus urged at such a length of time after the sale was confirmed, that, unless it be shown that positive injury resulted, the objection can have no weight to vacate these sales. If the party had urged it promptly, upon the filing of the master’s report, it might have been heard with more favor, but as the court has exercised its discretion in adopting this sale, and no positive injury is shown, we do not feel justified in reversing the decree, upon this objection.
It is again insisted that the decree should be reversed, because the purchasers under these sales and the commissioners used means to, and did prevent bidders from attending the sale. If such were true, than it would amount to a fraud for which the sale should be set aside. The evidence shows that Hotchkiss inquired of Bartlett and of Merriman whether they supposed the sale would be made, and they informed him that they supposed it would not. And it also appears from the evidence, that complainant had promised to pay the money before the day of sale, and relying on that assurance they gave the opinion. But he does not say that if he had attended the sale, he would have bid a greater or even a less sum than it was sold for. He says that he had means for the purpose of purchasing property, that this property suited him, and he wanted to buy it if the price at the sale suited him, but had not made up his mind to bid until he saw how it went. He was at the place of sale and left just before the biddings commenced, in consequence of some one informing him that there would probably be no sale. Who this person was, he does not remember, and he is unable to connect it with any of the parties to the transaction. This we think is not sufficient to establish fraud in keeping bidders from attending the sale. And there is no evidence that any thing was said to others for the purpose. And on the other hand it appears that Merriman notified persons that the sale was about to commence, and requested them to attend and bid.
It is again urged that there was such a sacrifice in the sale of the property, that the sale should be set aside and a re-sale ordered. The evidence in regard. to the value of this property, like all evidence of value depending upon the opinion of witnesses, is conflicting. A number of witnesses give the opinion, that the property at the time of the sale was worth from twenty to one hundred and twenty-five dollars an acre. Others again fixed the value at less than 'twenty. And the evidence shows that lands adjoining this were about and after that time purchased for about the same price, and even much less than this. Bryan sold eighty acres adjoining this tract and lying nearer the city, the year after this sale for ten dollars an acre. Bradley, more than a year after, purchased the undivided half of an adjoining quarter for sixteen dollars and sixty-six cents an acre, and in the spring of 1846, purchased the other half at the same price. He purchased in the spring of 1848 eighty acres of the north-west quarter of the same section, in which this" land was situated, with thirty acres improved and in cultivation, for twelve dollars and fifty cents per acre. And Underhill sold land adjoining this, in 1843, at eight dollars per acre, worth about half the price of this.
A number of witnesses give their opinion that the land sold for its value. And Bartlett and Pettingill gave complainant thirty-five days to pay the money and get back his land. If sold at such a sacrifice, it is strange that he did not raise the money by the sale of a portion of the land or by mortgage, and prevent its being lost. And if it was purchased at such a sacrifice, it is strange that they should sell it at an advance of only about one hundred dollars near a year after they became the owners. At the time of the sale there was an unsatisfied judgment against complainant and others as securities of Bryant, which was a lien on the premises, and the probability is, that had some effect in fixing the value of the land. When we take into consideration the great scarcity of money, that the property was then only valuable for farming purposes, and. that no person could foresee the rapid growth of the city which has since taken place, it is not strange that it should have only sold at fourteen dollars and fifty-nine cents per acre. And in view of all the evidence of the case, while it is conflicting, we are not prepared to hold that there was such a sacrifice as would justify the reversal of the decree.
It is again urged that the land was susceptible of a more advantageous division than the one made, and the property should have been offered in smaller lots, and failing to do so, the sale should be set aside. It has been repeatedly held that it is erroneous to offer several distinct tracts together, because, when thus offered, the presumption is, that the price was by that means depressed, as it required more means to purchase the several tracts together, and cut off competition, and in cases of redemption, when sold separately it affords the debtor the means of redeeming a part, while he might be unable to redeem all. We have been referred to no authority, and we are aware of none, that requires a sheriff or commissioner to divide land, on his own motion, into small parcels for sale. Yet when required by the debtor to do so, and when it would not produce a loss on the property, we do not hesitate in saying he should so offer it. But in this case there does not appear to have been such a request by the complainant or any one else. He was required by the court to sell all, or so much as would pay the mortgage debt. It directed no division unless the bids had run the price beyond the amount to be raised. And the evidence shows that it was then valuable for farming purposes only, and the reasonable probability is, that to have so divided it would have reduced instead of increasing the price.
This objection was not urged against the confirmation of the sale, and was not embraced in the original bill, from which it is inferrable .that it was not regarded as any serious objection at the time the sale was made.
And whether we consider the evidence in the case in reference to these objections singly or collectively, we do not perceive that the allegations of the bill are sustained. And we are of the opinion that there was no error in the dismissal of the bill, and that the decree of the court below should be affirmed.
Decree affirmed.