29 Ohio St. 651 | Ohio | 1876
The true meaning of certain matters stated in the second defense is involved in some doubt.
It is denied that lot 98, described in the petition, was appraised or sold by the plaintiff to the defendant. It is also averred that there is no such lot as 98 in existence, and the same as to part of lot 97.
And, again, it is averred that lot 98 and part of lot 97 are water-lots. And also that this lot 98 and part of lot 97 were appraised and advertised for sale as dryland, whereas they are situated within the banks of a navigable stream.
Applying the rule, however, that a pleading which con
And having thus settled the construction of the pleading, we are of opinion it does not state facts sufficient to •constitute a defense to the action.
The grounds upon which the defendant relied, as we understand the answer, are that' all the lots were appraised and advertised for sale as dry land; that the defendant’s hid therefor was made upon the information and belief that they wore dry, whereas, in fact, lot 98 and part of lot 97 were under water, and that immediately after the sale the defendant discovered their true character, and, before confirmation, notified the plaintiff that it would not accept a deed or pay for the lots.
It is true, upon the facts stated, the defendant did not buy such lots as he supposed he was buying. And it may be true, also, that the plaintiff believed that all the lots offered were dry. This, however, does not make such a case of mutual mistake as vitiated the contract. The mistake was simply as to the character or quality of the lots. The sale was a judicial one, and the -purchaser was charged with the duty of ascertaining for himself the character and condition of the property. This it failed to do, and for such neglect, it stands as though it had full knowledge in the premises.
It is not alleged in the answer, that the plaintiff, in any particular, acted in bad faith; or that the defendant was misled or deceived by any act or representation made by the plaintiff. Nor is it alleged even that the property was not worth the price bid, or as much as if it were dry.
True, it was disappointed, but that was its own fault. 'The plaintiff was neither a warrantor nor a fraudulent ■vendor.
If the defendant had been free from negligence and had been deceived by the act or representation of the plaintiff', it might be entitled to protection. But the case made shows, that it not only wishes to be relieved from the rule,
If, before the sale was confirmed by the court, the defendant had applied for relief, and had moved to set the sale aside, the court, in its discretion, might have done so. But after the sale is confirmed, in an action for the recovery of the purchase-money, the facts stated in this answer do not constitute a good defense either at law or in equity.
2. It is also claimed that the sale was void for want of authority in the master commissioner to make it. The decree under which the sale was made directed that the property should be “sold by the sheriff or master commissioner of said county as upon execution.” It is objected that the master was not named in the decree. We think the objection is not well taken. It is true that the direction was to-the sheriff or master commissioner. This is unusual. But after sale by the master is made and confirmed, the irreglarity is cured. Where a regular master commissioner is ordered to sell, it is not necessary that the name of the officer should appear in the decree ; at least, after sale confirmed, it is too late to make the objection. Other objections are made to the judgment below, but we do not find any error in the record, and no further report need be made.
Motion overruled.
