Hill v. Hoover

5 Wis. 354 | Wis. | 1856

Lead Opinion

By the Court,

Cole, J.

I am of the opinion that the order of confirmation in this cause must be .vacated and set aside, for the reason that the proof of notice of sale, filed by the sheriff with his report, is insufficient. The statute provides (sec. 65, chap. 98) that “ the affidavit of the printer, or foreman of such printer, of any public newspaper published in this.state, of the publication of any notice or advertisement which by any law of this state shall be required to be published in such newspaper, shall be entitled to be read in evidence in all courts of justice in this state, and in all proceedings before any officer, body or board, and shall be prima facie evidence of such publication, and of the facts stated therein.”

As this evidence is admissible only by virtue of the above provision, the affidavit cannot be admitted unless it is in strict conformity to it. It is necessary that it should be made by the printer, or the foreman of the printer, of the newspaper in which the notice is published; and that fact must be distinctly stated in the affidavit, and sworn to by the person making it. It is a material part of the affidavit, and cannot be dispensed with. In the present case the affiant, by way of recital, describes himself as foreman, but he does not swear that he is foreman, consequently the affidavit is not such as the statute requires. A correct form is given in 2,Barb. Ch.. Pr. 706.

The application made in the Circuit Court on behalf of the appellant, was-not only to vacate, .the order of confirmation, but to set aside the sale altogether, for several reasons set forth in tbe motion. It is not necessary to further notice tbe first reason assigned; and it is perhaps sufficient to say, in regard to tbe second, that Hoover was not entitled to notice of tbe proceedings, since he bad made no appearance in tbe cause. But tbe main grounds relied upon, in tbe court below, and in this court, to set aside tbe sale, are, 1st, surprise; and 2d, inadequacy of price paid at tbe sale.. It is insisted that the sale should be set aside on account of surprise, or because Hoover was in some way misled by Hill; and that this case is within tbe principle of Catton vs. Strong (1 Wis. R. 471); and several others, cited upon tbe briefs of counsel. I do not propose examining these cases at any length, and will only remark, in reference to them, that they do not appear to me to support the present case. In that of Williamson vs. Dale (3 J. C. R. 290), tbe executors were induced to believe tbe sale would not take place when it did; and this belief was founded upon representations made to them by their agents, of conversation which be had held with tbe plaintiff and bis solicitor; consequently they were surprised by tbe sale and not prepared to meet it. These representations were verified by affidavits which were not contradicted. In that of Collier vs. Whipple (13 Wend. 224), the conduct of tbe master,, who made tbe sale, was calculated to mislead, and did mislead tbe agent of Whipple, as to tbe time tbe sale would take place. In that of Tripp vs. Cook (26 Wend. 143), Tripp, who was surety, in an interview be bad with tbe complainant and tbe agent of Cunningham, tbe principal debtor, understood, and was led to believe by them, that tbe suit would be settled. This conversation was bad between tbe parties about a week after tbe service of tbe subpoena upon Tripp. He acted upon this supposition, and beard nothing to tbe contrary until after tbe sale of tbe mortgaged premises, and tbe levying of an execution upon bis own property for tbe deficiency, although be resided in tbe same place with tbe complainant, and saw him almost daily. In Strong vs. Catton, tbe latter bad bad different conversations with the complainant, Martin, upon tbe subject of postponing tbe sale, so as to enable him to raise tbe money to pay off tbe decree ; and Martin assured Catton be would consult bis interest as to the time of sale. Prom these assurances Oatton was induced to believe there would be a postponement of the sale, and remitted his exertions to obtain money to discharge the decree.

If we examine the affidavits filed on the hearing of this application for a re-sale, we shall find that they present no such case as any of those we have been considering. It appears that the parties had an interview for the purpose of settling the suit, at the office of Wells & Brigham. This was on the 11th of August, a few weeks after Hill filed his bill of foreclosure against the mortgagors, the Nelsons, and very soon after the service of the subpoena upon Hoover. Hill was about going east, and was in need of the money due upon the mortgage. He requested his brother Joseph to see Hoover, and urge upon him a settlement. Hoover had purchased the property, subject to the mortgage, and it was but reasonable to suppose that he would be anxious to discharge it, and save the costs of foreclosure. At this interview, Hoover in substance says in his affidavit, after stating to Hill that be was surprised, considering their relations, that the mortgage should have been foreclosed without notice to him; that he proposed paying the amount due, and settle the matter, but claimed that since he had always been ready to pay, he ought not to be required to pay more than half of the solicitor’s fees secured by the mortgage; that Hill said affiant must pay the costs, but that he (Hill) was then going east, and that the affiant could fix up matters after his return ; and further, that this conversation was on Saturday after bank hours ; and that he expressly stated that he would settle the amount and costs on the next Monday, when Hill stated he was going east as aforesaid; that the affiant had always been ready and willing to pay the amount of said mortgage, costs and interest, and understood that Hill desired it settled after his return, and that no advantage should be taken of him for that reason ; that he did not afterwards see Hill, except in a buggy passing, until after the sale; and that relying on the understanding aforesaid, he employed no lawyer to watch the proceedings, and was utterly ignorant of the decree and sale until after it took place.

Hill; in bis affidavit, gives quite a different account óf tbis whole transaction. He states that on or about the 7th of August he met Hoover at the Cold Spring House, and that they hada conversation about the suit; that Hoover said he was willing to pay the amount due on the mortgage, and would call next day at his office and settle; that he did not want to put the affiant to trouble, and wished to avoid costs. He says that Hoover not coming as he agreed to, he requested his brother Joseph to see him and urge him to come down and settle as he had proposed ; that his brother did see him, and by agreement they met at the office of Wells & Brigham, at 2' P. M., on the 11th of August; that at this interview, Hoover proposed to settle by paying the amount of the note secured by the mortgage and one-half of the costs, and that he insisted upon his paying the whole amount of the note and the costs, and refused to settle upon any other terms; that Hoover then said that money was worth twelve per cent, to him, and that he believed he could make as much upon the money as the costs would be, if he let the suit go on, or words to that effect; that Hoover afterwards said, that he had not the money with which to pay the note then, and that he should be obliged to see if he could raise it; that he then stated to Hoover that he should start for Buffalo the next day, or early the day after, and that it must be fixed then to be of any use to him. Hoover said this was impossible, and that the matter must be left until his return, and so the conference ended; that he went away with the impression that Hoover chose to keep his money till a decree could be obtained, and pay extra costs, and that he directed his solicitors to press the suit as fast as possible.

This statement of Hill is strongly corroborated by the affidavit of his solicitor, Brigham. He states that he was present at the interview between the parties, and that in the conversation, Hoover inquired of him the probable time it would take to get a decree against him, for the purpose, as deponent understood, of determining whether it was better to pay up at that time, or let it run till he was compelled to pay by a decree; that he then informed Hoover that there would probably be a decree in September following, and otherwise generally stated to him the time that would probably be required for the several steps before sale, as nearly as be could, wbicb deponent believed did not vary' much from tbe time actually taken.

I do not deem it necessary to make any further observations upon these affidavits, than to say, that I do not think they show a case of surprise as to the sale, or furnish any foundation for the charge that Hoover was misled about the suit by either Hill, or the complainant’s solicitors. Hoover must have known that he could put an end to the suit at once by paying the requisite amount into court, or to the solicitors of complainant. If he was really anxious to settle, why did he not do this ? Or, why did he not inquire for and find Hill ? He knew that Hill had returned from the east. It is certainly a little remarkable that he did not find him and, “ fix up matters,” as he says he understood was to be done after his return. ■; It was not Hill’s business to run after him, and he had no right to expect it, after what had passed between them. . The conclusion to which I have come upon these affidavits is, that after the interview on the 11th of August, the parties intended to keep each other at arm’s length, neither giving or asking favors: Hill did not expect his money until decree and sale, and Hoover did not intend to pay until that time; for if he had, there was every opportunity for him to have done so. He probably did not intend the property should be sold, and pass into other hands. He undoubtedly expected to be present at the sale, and it is attributable to his own neglb gence that he was not.

Ought the sale to be set aside on account of the inadequacy of the pi’ice paid upon the sale ? The property was bid in by the solicitor of the complainant — doubtless, for the use of the complainant — for $1,138.06, the amount of the decree and costs. Hoover swears that the property was worth, at the time of the sale, $4,000. At sheriffs’ sales, property is almost always, in this country, sold at a sacrifice. Probably this is the experience and observation of all. And it is highly important, in order to secure reasonable competition, that there should be confidence in the stability of these sales, otherwise the great inducement for bidding will be taken away. These obvious considerations of expediency, and sound public policy, have time and time again, been stated and enforced by tbe most eminent judges. Consequently courts will not disturb these sales except in special cases. See Strong vs. Catton, Tripp vs. Cook, Williamson vs. Dale, Collier vs. Whipple, cited above; also Lansing vs. McPherson, 3 J. C. R. 424; Duncan vs. Dodd, 2 Paige, 99; and cases cited in note “ 2,” 2 DanH Ch’y Prac. 1465. In this case there is no ground for saying that Hoover was misled by the complainant or his solicitor. His property was sacrificed through his own neglect or inattention to look after it. There is no deficiency to be paid by him or anybody else. He does not stand in the attitude of an infant, surety, or of a creditor, interested in the equal distribution of an insolvent estate. I therefore think that the Circuit Court very properly refused to set aside the sale. But the order of confirmation of sale must be reversed and cause remanded for further proceedings, according to law.

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Dissenting Opinion

Smith, J1,

dissenting. It cannot be denied that powerful appeals have been made to the court to sustain this sale, and strong reasons, founded upon public policy, have been presented with all the force that could be derived from the character of the parties, the acknowledged ability of the counsel, and the somewhat peculiar circumstances of the case, and of those to be affected by its determination.

It is said (not probably intended to be asserted, that the substantial equities, or the rigorous law of the case, is thereby changed), that here are contending two full grown men, each abundantly competent to protect his own interests, acting with full knowledge of all, or at least, each presumed to have full knowledge of the consequences of his own conduct, and hence there is no occasion for the interposition of a court of equity for the protection of the weak against the aggressions of the strong, or for the rescue of ignorance from the fangs of unscrupulous intelligence.

Were this the only consideration involved in this case, little hesitation would follow its statement. Yet it should not be forgotten that it is from just such cases, where the character, circumstances and condition of the parties are in equipoise, that fatal precedents intrude to disturb the course of justice, when the circumstances and condition of the parties are widely different. Hence it is necessary to look beyond the immediate parties, their condition and circumstances, to the facts of the case, and from these to deduce a rule of judgment or administration that will answer the ends of equity, whatever may be the character or condition of those who are to be affected by it. The same facts which are to govern the determination of this appeal, must govern all others of like nature hereafter, however the circumstances of the parties may differ, provided they be of full age, and competent to act for themselves. No fraud upon, nor any undue advantage of any infirmity of body or understanding, is alleged to have been taken. The subject matter for adjudication stands upon the simple facts and transactions as they are presented by the appeal. ■ Therefore, the fact that both parties are in affluent circumstances, should have no weight whatever, any more than though the mortgagee was wealthy and the mortgagor was poor.

It is also urged with great earnestness, that there should be some certain, definite; fixed rule established, whereby gentlemen of the profession may safely advise a purchaser at chancery sales, without fear of the interposition of the court to set them aside, and that public policy, as well for the interest of the mortgage debtor as for that of the creditor or purchaser, requires such a rule; that the certainty of the purchase would tend to enhance the prices, would give a stability to judicial sales, and solidity to titles so acquired, which would operate equally to the advantage of the debtor and creditor. Nor can it be denied that there is force and philosophy in these suggestions to a certain extent, the boundaries of which cannot be better defined than by those rules of equitable and fair dealing, sanctioned by the universal conscience of mankind, admitted by all, denied by none, and which, by their power upon the conscience, become the law of association and the rule of conduct.

' Courts of equity frequently interfere to' protect tb'e WéaR against tbe strong, and innocent ignorance against-grasping: aad unscrupulous intelligence;' not;'however, because of the feebleness -of the weak, or want of- sagacity of the' ignorant,--but because injustice has been doné or menaced- them by taking advantage of their weakness or ignorance;1 The equity-of the transaction-under-review, not the character and condition of-the-parties, is the-subject of the-present inquiry.

If it be true, as counsel contend, that here áre two full-groWn men, each striving to obtain an advantage over the other, it is nevertheless true, that the demands of equity are as potent-be'1tween- full-grown men as men of a lesser growth. 1 Justice"is neither more nor less than justice, whatever may be thenhátáe-1' ter of -those seeking its award. "

In regard to the requirement of this court to lay down1 some fixed and unyielding rule, by which counsel may advise- their' clients when it will be- safe for1 them to bid at "a chancery-sale, and be sure-that-their' bids will not be disturbed,’ it is certainly proper,-if not-unnecessary,1 to remark, that' the establishment of such a rule "-would subvert the very objects and ends'"of a court of equity in that behalf. When-'justice and' fair dealing have been observed upon thése sales throughout, courts of equity seldom interfere; but there -are a thousand modes in which any rule' possible to be established might be evaded, and any attempt to establish- any such inflexible1 rule would be subversion of the purposes and functions of equity jurisprudence.

It was also urged, as before intimated,- that there should be a legal certainty affixed to these sales for the benefit of the unfortunate person -or -persons whose property is sold; that the property will! bring a higher price if the- sale is to be considered a finality, &c. But however strongly such considerations may be urged, the- essential functions of a-court of equity must not be overlooked in mere speculation upon matters of social or political economy-; designed as'they are, to reach every individual case, to penetrate and search out individual wrongs, to probe the personal conscience; or, at all events, to bring up the conscience of those to whose arbitrament the matters may be committed, to the highest standard consistent -with the course of justice and the general principles of equitable administration. Theoretically, the views of counsel may be correct, but practically, they have not yet been realized. On the contrary, such applications have always been of frequent occurrence, and will doubtless continue for the purpose of relief against the effects of accident, mistake, fraud and oppression. It can hardly fail to be observed, that these economical suggestions, so replete with solicitude for the interests of the unfortunate - debtor, are always urged by the purchaser whose interest is adverse to that of the involuntary vendor.

While it is admitted that a just- system is adhered to, set far as it is practicable, to give stability and efficacy to chancery, sales, it must not be forgotten that the very object of the institution, of equitable jurisprudence, in reference to the relations of parties .so situated, was to ameliorate the stern requirements of the law upon the literal tenor of their contracts. - The right of redemption is a peculiar feature of that jurisprudence, stepping in between the harsh demands of legal forfeiture and the subjects of misfortune, accident, mistake or surprise, incident to human infirmity. Its object is to bring all the parties up to the standard of equal and exact justice. The rules of law are inflexible, and for that very reason those of equity are flexible.

Let us now proceed to consider the facts in the case, as they are presented on this appeal. I do not propose to recapitulate them in detail, but refer to their statement preceding. Nor do I consider it important to comment upon those which appear in the affidavits, pro and contra, but only to allude to the main facts, as they appear established by all the evidence in the case.

The first fact that appears in the statement is, that the appellant Hoover, was under no moral obligation arising out of contract to pay the mortgage debt for which the land was holden. He was not a party to the mortgage, but had only bought the premises subject thereto. In the next place, Hill had an equitable and legal lien upon the mortgaged premises, which he had a right to subject to the payment of his mortgage debt against the Nelsons. Whenever that debt was satisfied, liis claim upon the land was extinguished, unless that fact was accomplished by the sale-and purchase thereof. If Hoover did not pay the mortgage when due, Hill had a perfect right to proceed to foreclosure, and to be indemnified for his legal costs and charges. But there was no breach of faith on the part of Hoover, in not paying the mortgage at the day, as between him and Hill, because there was no privity of contract between them. Hence the equity between these parties was, that Hill might foreclose his mortgage and thus satisfy his debt, and that Hoover might pay the mortgage interests and costs at any time before the foreclosure proceedings should be consummated.

The mortgage was not paid, either by-the mortgagors when it became due, or by Hoover, who purchased the premises subject to the mortgage; and Hill, the mortgagee, proceeded to foreclosure. It appears that the mortgaged premises, so situated, were advertised to be sold, under the decree of foreclosure, on the 8d day of November, 1855, at the court-house in the city of Milwaukee, at 2 o’clock, P. M.: that the sale was made to the complainant, or rather to the complainant’s solicitor, for his benefit, and, as was stated, no other bidder being present to bid, for from one-third to one-fourth of the value of the property sold; that within one-half hour to one hour after the property had been stricken off, and as it would appear, and must necessarily have been the fact, before the report of sale, or confirmation thereof (for though the affidavits are not explicit on the subject, it is quite apparent that the report could not have been made out within that time, nor inspected by the court), the defendant Hoover, having been casually informed of the sale, called upon the complainant’s solicitor at the place of sale, and then and there offered to pay the whole amount of the mortgage debt, interest and costs: that the complainant’s solicitor then and there informed him that although the property had been bid off in his name, yet it was for the benefit of the complainant Hill; that he had no authority to make any arrangement, and referred him to Mr. Hill, who was alone authorized to negotiate on the subject: that therupon, Hoover went in pursuit of Hill, but was unable to find him for some two or three days; that notwithstanding the complainant’s solicitor had thus referred tbe matter to tbe complainant, to accept or reject of bis proposition, he on tbe same afternoon proceeded to have' the deed executed and recorded, tbe sheriff’s report of sale made to tbe court, an order of confirmation awarded, drawn up and signed, and all this must have been accomplished within two or three hours from the time fixed for the sale, which was made, only one bidder being present, and that bidder tbe complainant’s solicitor. How long a time could tbe property have been cried by tbe officer ?

If tbe sale, which was advertised at 2 o’clock (and it must be recollected that timepieces vary materially, there being no common standard), was concluded within half an hour to one hour from tbe time advertised, and within two or three hours the deeds passed, and were recorded, the order of confirmation awarded, signed and entered, the report of sale drawn up, submitted to the court, and inspected, it is still more apparent that all these duties could not possibly have been properly performed within so short a time. And when it is shown that there has been a great sacrifice of property, whether the necessary result or not of such haste, it becomes the duty of the court to interpose, and instruct its officers more specifically in relation to the execution of its orders and decrees. If the sale, report thereof, conveyance, confirmation, &c., were all accomplished before Hoover arrived, viz.: within one-half to an hour and a half after the time fixed by advertisement for sale; and if all this could not possibly have been properly done within the time mentioned (as most certainly it could not), purchasers at sales so conducted, whether parties to the suit or not, have no cause of complaint, if the court does interpose to correct any error which may have occurred in its ministerial administration. •

Officers who make these sales are not the mere agents of the complainant who has sought and obtained the decree. They are executing a sacred trust, committed to them by the court, • and they should be held to strict integrity and reasonable discretion in the performance of these duties.

And here it may well be asked whether the officer making this sale was strictly mindful of his duty in the premises ? I do not mean to intimate that there was any intentional wrong on bis part. He might have supposed that the parties defendant ..designed to abandon the property to the complainant;, he might have been ignorant of its value; he might have supposed that the sale was one of form merely. However this m.ay have been, the result is the same.

It seems impossible for me to believe that this was-a fair sale, judiciously managed by the person conducting it. . Here was property to a large amount (some $4,000), every, proceeding in the process of. foreclosure was taken at the earliest possible moment. • The sale occurred on the 3d of November, and from all the circumstances in the case, as well as the direct evidence produced, it could not have been cried by the officer, but for -a very brief period, less, very much less than an hour, and in so short a space of time, too, sold to the complainant, he being the only bidder; and on the same afternoon, the report made, the deed executed, the report examined (as we must presume carefully) by the court, order of confirmation made, drawn up, inspected, and signed by the court. The sale was advertised to be at two o’clock, and the question significantly recurs: how long did the officer cry the property ?

, Sales of this kind are made by the authority of a court of chancery, and such court is bound to see that they are fairly and properly conducted in conformity with the demands of equity and good conscience. They are the sales of the court, and not of the mere ministerial officer who executes them. ,.

If there were nothing more in this case than that the defendant appeared upon the ground at the place of sale, in half an hour or air hour after the property had been struck off, and then and there offered to pay the whole debt, interest and cost, thus fulfilling to the uttermost the object and scope of the order of sale, and this fact was made known to.the court, would the sale be confirmed ? It must be recollected that this is not an application for re-sale on the ground of mere inadequacy of price, but it is a motion to resist or set aside the sale .and order, of confirmation, on the .ground, among other things, of full satisfaction made, or, what .is the same, thing, offered..

This, case stands upon the same ground as if the motion to resist confirmation bad been made on tbe afternoon of November 3d; for tbe offer to pay tbe decree and costs was -then made, at tbe place of sale, and very soon thereafter, upon wbicb tbe solicitor of tbe complainant, wbo was- tbe purchaser for him, referred tbe defendant to tbe complainant,.and wbo, while be was in pursuit of him, immediately proceeded to procure an order of confirmation. Now, bad these facts been made known to tbe court, on tbe application for such order, would tbe court have granted it ? Yet tbe facts existed at tbe time, and were .brought to tbe knowledge of tbe court, at tbe earliest practicable moment, and should have tbe same effect as though they bad been interposed at tbe time, as doubtlessly they would have been, bad not tbe defendant been referred to Hill by tbe solicitor.

- In tbe case of Strong vs. Catton (1 Wis. 493), this court say: -But if it be true, as we are told in tbe argument, that Mr. Strong was tbe only bidder at tbe sale, it was tbe duty of tbe officer to postpone tbe sale, in order that tbe property, by competition in bidding, might bring a fair price. There is no doubt, that for this purpose, it is within tbe discretion of tbe officer to postpone tbe sale.” Much less, therefore, should be be permitted to sacrifice property by crying it for only a few minutes from tbe earliest moment fixed, and that, too, in a place where timepieces vary as they generally do. We are not informed, except as was-said upon tbe argument, bow long tbe property was cried in-this case, but we do know that tbe whole business of sale, making report, executing deed, examining reports, drawing and'passing order of confirmation, was completed in a very short time, far too short for that deliberate and cautious action wbicb should always characterize tbe proceedings of a court in equity, in disposing of property or rights committed to its charge. And when we are further informed, as we were on tbe argument, that tbe examination of tbe report, and passing of tbe order of confirmation, was made in tbe midst of a jury trial, with■out any regular call of the calendar or tbe case, it is impossible for me'to-bring my mind to tbe conclusion that the rights and - interests of tbe parties were properly cared for in this case.

It must be kept constantly in mind, in this case, that by tbe decretal order, and advertisement of sale of tbe mortgaged premises, tbe bour of sale was fixed at two o’clock P. M.: tbe value of tbe property to be sold was some $4,000 or more, and yet tbis property must bave been “ cried ” only about ball an bour at tbe longest, and struck off to the complainant’s solicitor for about one-fourtb its value, for tbe benefit of tbe complainant, he being tbe only builder at tbe sale, and practically, tbe property not having been cried at all at public sale.

A court of equity ought not to sanction such proceedings. Hoover appeared just after tbe officer bad ceased to cry tbe property, and as soon as be knew of tbe sale, and offered to pay tbe whole amount of debt, interest and costs. He (Hoover) swears in bis affidavit that be was ignorant of tbe sale. It is apparent that be did not intend that tbe property should go to 'sale. He was under no moral obligation to pay tbe mortgage debt: that is, there was no moral obligation as between him and Hill to pay it, although tbe property was primarily bound to its full satisfaction.

Substantially and briefly, tbe case may be stated thus: Hoover bought tbe premises subject to tbe mortgage of -Hill. Hill was anxious to get bis pay, as be bad a right to do, at tbe earliest practicable moment. It was morally certain that tbe Nelsons would not pay, and that tbe property was tbe only source of security or payment. The proceeding of foreclosure was urged forward as rapidly as tbe forms of procedure would permit. A final decree was pronounced, in pursuance to which tbe property was advertised to be sold on tbe 3d day of November, at tbe court-house in Milwaukee, at two o’clock P. M. Hoover interposed no defence or obstacle to tbe proceeding of tbe complainant. He sought no delay. He' was ignorant of tbe time of tbe sale, but was casually informed thereof, and at about or 3 o’clock, reached tbe place of sale, and offered complete satisfaction of tbe debt, interest and cost. Tbe sale had been already concluded; the property stricken off to tbe solicitor of tbe complainant, he being tbe only bidder, in behalf of tbe complainant, at about one-fourtb or one-third of its actual value, not having been cried, as is apparent, more than from one-half of an hour to an bour. On tbe offer of tbe whole debt, interest and cost, tbe solicitor referred Hoover to tbe complainant, and while be was in pursuit of him, proceeded, on tbe same afternoon, to obtain tbe ear of tbe court and procure confirmation of tbe sale. Tbe question is, is it right and just that this sale shall stand ? I am compelled to say that such confirmation is repugnant to my sense of justice. It was most assuredly-tbe right of complainant to obtain tbe satisfaction of bis debt, interest and costs, out of tbe mortgaged premises. But when that offer was made to bis solicitor; at about three o’clock P. M. on'the day of sale, tbe whole object of tbe foreclosure suit was accomplished. It is very apparent that tbe appellant was unaware of tbe time of tbe sale; that be did not intend tbe premises should go to sale; and that be offered full payment. Was it right, therefore, for tbe complainant’s solicitor to proceed, on tbe afternoon of the sale, to confirmation, after having referred tbe appellant to tbe complainant, with tbe offer of satisfaction that bad been made ? I impute, of course, no moral wrong to tbe solicitor. But again it may be asked, was it right and proper for tbe court to pass in such hasty and necessarily inconsiderate manner, tbe report of sale and order of confirmation thereof? Tbe court, doubtless, was entirely unaware of any of tbe rights or equities of Hoover in tbe matter, and no imputation is made or intended against tbe proceeding of tbe court. But I am constrained to believe that all tbe equities which Hill'bad a right to demand were fully met by tbe offer of Hoover, and that tbe sale itself should be set aside, and not merely tbe order confirming it, for defect of notice,, or rather in tbe proof thereof.