9 N.M. 136 | N.M. | 1897
In a proceeding to foreclose a mortgage upon certain cattle and real estate of the Horse Springs Cattle Company one George Smith, its president, was appointed receiver, on the stipulation of the parties. This stipulation, which was signed by Smith for the company, authorized the receiver to round up such cattle as could be marketed, and dispose of them at public or private sale; the contract for the ' sale of such cattle to be first submitted to the court for approval, or to receive the written assent of Schofield, representing the mortgagee. Under that stipulation, an order of court was made March 28, 1894, authorizing Smith, as receiver to gather the cattle, and contract for the sale of the mortgaged property “to the best advantage;” such contracts to be submitted to the court for approval, unless assented to in writing by Schofield. Acting under this order, a number of cattle were gathered from time to time, and sold by the receiver. On January 16, 1896, the receiver, Smith, made an application for leave to sell the remainder of the cattle then on the range for $7,000, range delivery. In this application the receiver represented that it would be to the interest of all parties to accept the offer of $7,000. which he had received; that it was impossible to state how many cattle there were, but he did not believe there were one thousand head; that a sale upon the range would save considerable expense; and that he had submitted the proposition to complainant, Schofield, who was willing it should be accepted. On the same day an order of court was made reciting that the cause came on to be heard on this petition of the receiver, and that complainant, by his solicitor,' appeared, and consented to it. The receiver was authorized to accept the offer, and report his doings to the court. On April 4, 1896, a motion was filed by the Horse Springs Cattle Company, praying the court to set aside the order authorizing Smith to make the sale for $7,000, upon the following grounds: 1. Said order was improvidently made, and without notice to or knowledge of the defendant, the Horse Springs Cattle Company, or the attorneys, solicitors, officers, directors, or stockholders thereof. 2.' There was at the date of said petition, and order a much greater number than one thous- and head of cattle belonging to defendant, the Horse Springs Cattle Company, and branded “Z. P.,” in the charge of said receiver, upon the lands or ranches of said defendant company. 3. The amount of $7,000, alleged to have been offered to said receiver for said Z. P. cattle, is a wholly inadequate and insufficient price for the same, and said cattle could have been, and can now be, readily sold for a much greater sum in cash than $7,000.
At the time this motion was filed, no report had been made by the receiver as to his action under the order, but in a report which appears to have been sworn to on April 20, 1896,. the receiver reports that on January 17 he sold the cattle to one H. A. Hayes for $7,000, cash, had received payment therefor, and had paid over the purchase money to Schofield on the mortgage debt.
On October 27, 1896, the court required the company to-give bond in the sum of $15,000, conditioned that in the event the sale should be vacated the cattle shall realize on resale such sum in addition to $7,000, as will be sufficient to pay costs of resale and costs of receivership from January 16, 1896. The cause was referred to an examiner, to take proofs as to the-number and value of the cattle, and all material facts in regard to the sale. The examiner took a large mass of testimony, and on June 7, 1897, the court heard the case on the testimony so-taken, and found that defendant had failed to establish any of the grounds set forth in its motion, and the motion was overruled. Final decree has been entered. The question was-brought here on appeal.
We are of tbe opinion that tbe evidence shows that tbe order authorizing tbe receiver to sell these cattle was based upon great and material errors as to tbe number of cattle and to tbe reasonable value thereof, and that to refuse to set tbe sale aside would result in permitting tbe purchaser to enjoy “an un■conscionable advantage” by tbe sacrifice of tbe property through such mistake. When Mr. Hayes bid upon this property, be submitted himself to tbe jurisdiction of tbe court as to all matters connected with tbe sale, and relating to him in tbe character of purchaser. Requa v. Rea, 2 Paige 339; Kneeland v. Trust Co., 136 U. S. 93. A resale should be granted, but out of tbe purchase money received from tbe sale tbe former purchaser, Hayes, shall be repaid tbe purchase price heretofore paid by him and interest thereon at six per cent per annum from tbe seventeenth day of January, 1896, and also bis reasonable costs and expenses of defending tbe sale heretofore made to him, including bis solicitor’s fees in this and tbe court below. Williamson v. Dale, 3 Johns. Ch. 293; Duncan v. Dodd, 2 Paige 101. These costs and expenses will be ascertained and taxed by tbe court or judge of tbe Second judicial district. The cause is therefore reversed and remanded, to be proceeded with in accordance with this opinion.