13 F. 870 | N.D.N.Y. | 1882
This is a m,otion by a creditor to set aside a private sale by the assignee of his interest in lot No. 657, Cherry Grove township, Warren county, Pennsylvania, to William W. Welch, and a subsequent sale by Welch to one John L. McKinney. The assignee’s sale was made pursuant to an order of the court dated July 18,1882, allowing him to sell the said interest under the direction and control of the register, and in such manner as he should order and direct. The register took the proof and heard the allegations of the parties. On the twenty-second of July he made an order authorizing the sale, without public notice, for $825. On the nineteenth day of August following, Welch sold the property for $1,500. Petitioner, who is a creditor in the sum of $6,500, had no notice of the sale, and now asks that it be set aside as fraudulent and irregular, alleging that the assignee’s interest was worth much more than the amount received. Two affidavits are produced, in which the affiants swear that the said interest was worth at least $3,000, and they offer, upon a resale, to bid that sum for it.
The remedy adopted by the petitioner, though summary, seems to be the proper one.
The act of June 22, 1871, (18 St. at Large, p. 178, § 1,) having reference to public sales—and a fortiori to private sales—by the assignee, provides: “And the court, on application of any party in interest, shall have complete supervisory power over such sales, including the power to set aside the same and to order a resale, so that the property sold shall realize the largest sum.” See, also, Hale v. Clauson, 60 N. Y. 339; In re Major, 14 N. B. R. 71; Brown v. Frost, 10 Paige, 243; Barb. Ch. Pr. (2d Ed.) 541.
In Re O'Fallon, 2 Dill. 548, Judge Dillon says:
“ Where a public sale of the real estate is made by the assignee in bankruptcy under the order of the bankruptcy court, and the property is struck off to the highest bidder, sucli sale is subject to the approval of the court, which has a discretion to refuse to confirm it for a mere inadequacy of price. It is not necessary that there should be fraud, or such gross inadequacy of price as to be evidence of fraud.”
The practice in England, almost as a matter of course, is to open the sale on being assured of a fair advance on the amount bid. "This is the rule even in public sales. Our courts have hesitated to establish a doctrine so advanced. No case has been found, however, at all approximating the case at bar, where a resale has been refused.
An order may be entered granting the prayer of the petition, but upon the condition that the petitioner procures to be filed in the office of the clerk an offer in writing, accompanied with security, to bid for the assignee’s interest in the said property at least the sum of $2,000.
Motion granted.