Middlesex Banking Co. v. Lester

7 S.D. 333 | S.D. | 1895

Kellam, J.

The appellant was the holder of two notes secured by mortgage on real estate, containing a power of sale. Upon default in payment it duly ad vertised the premises for sale. Prior to the day appointed for the sale, it, by letter, authorized S. L. Sage to “attend, and bid $951.76 in the name of the Middlesex Banking Company for the land described in the certificate.” The letter covered certificate of sale to be signed by sheriff in case of sale to appellant. The sheriff was also notified by letter by appellant that: “Our agent, S. L. Sage, has the certificate of sale and other papers ready for you to sign, and the amount of your fees to be paid when signed.” It does not appear that he had any further knowledge of appellant’s instructions to Sage. On the appointed day the sheriff offered the property, consisting of a solid quarter section, in 40-acre tracts. There were several bidders on each tract, and Sage bid upon each in the name of appellant. Each was struck off to him for a different amount, aggregating in all $350. The certificate of sale was made by the sheriff to appellant, showing the amount for which each 40 was sold. This was delivered to Sage, who filed a duplicate thereof in the office of the register of deeds. Respondent Anna Pur key was the owner of the premises when sold, and was an unsuccessful bidder at such sale. Upon learning the facts, appellant wrote the sheriff, repudiating the sale, and soon after commenced this action to set aside the sale and for foreclosure of said mortgage. Upon trial the court found the facts as substantially above set out, and disr Blissed the action. From such judgment this appeal is taken,

Appellant urges several grounds upon which the sale should have'been set aside. It is claimed, first, that the whole tract or farm should have been sold en masse, instead of in 40’s. Assuming, but not conceding, that under our statute this is correct, so selling was an irregularity only, and did not of itself make the sale void. While there undoubtedly is some conflict of authority upon the effect of such an irregularity in the case of nonjudicial sales, we are satisfied that the safer rule is that such sales are not void, but voidable only, upon the motion of some interested party who shows himself injured thereby. See Willard v. Finnegan (Minn.) 44 N. W. 985; Cunningham v. Cassidy, 17 N. Y. 276. We can see nothing in this case indicating that the fact that the mortgaged premises were sold in 40’s, instead of in a lump, was the direct or indirect cause of injury to the appellant. If appellant’s representative, Sage, understood his instructions, and intended to follow them, the selling of the premises in four pieces instead of one would not account for his bidding in the aggregate only $350, in the place of $950, as instructed. There seems to be no relation as of cause and effect between the selling in 40’s and Sage’s aggregate bids, so much below the amount he was instructed to bid. When he bid $60 on each of the three 40’s and $1.50 on the other, he knew he was not following liis instructions as well as though he had bid the aggregate sum on the entire tract. It would look as though he was following his own judgment, instead of his instructions; and there is nothing in the case to suggest that he would have done differently if the whole quarter section had been offered and sold in a lump. He persistently bid against others on each separate 40, and evidently intended to buy them all, as he did, for the appellant. In that respect he did just what he was commissioned to do. The fact that the whole tract, sold in 40’s, would not generally bring as much on competitive bidding as though sold en masse, is not good ground of complaint by a mortgagee who was present or represented at the sale, made no objection to the manner of selling, bid all he desired to bid, and himself became the purchaser of all. In appellant’s printed brief it is suggested that “a sale by 40’s would place one parcel in the center of the section, and inaccessible to the established highways.” This is true, and the suggestion might possibly be forceful in this case if the proof did not show that the 40 so situated sold equally well with the others. There might be merit in the suggestion if it appeared that respondent was seeking to redeem a part of the land so sold, and it were claimed that such part was, in consequence of such irregularity, sold for less than its value; but the fact here is that the redemption sought to be made is of the whole premises, precisely as though they had been sold in solido. It would be strange, indeed, if a mortgagee, himself present at the sale, with an open opportunity to bid all he desired to, and becoming the purchaser at just what he voluntarily bid, could after-wards have such sale set aside on the ground either that he bid less than he ought to, or for an irregularity in the sale, which did not injure him. Upon the facts presented by the record, we are unable to see how the irregularity complained of did or could work any damage to appellant.

But does the fact that the agent, Sage, disregarded his instructions as to the amount to be bid, entitle appellant to a resale? We should say it would where such resale would not disturb or prejudice the rights of other interested parties, provided the ap-' pellant show itself to have been injured by the agents violation of his instructions. The question here is narrowed down to the one point of the conduct of the agent, for it is not,claimed that the sheriff who made the sale, or anybody else, except appellant and Sage, knew of these instructions, or the extent of his authority, The case is the same as though appellant had sent an agent from its own office in St Paul, having given him a letter precisely like that sent to Sage. Under such circumstances, to entitle the appellant to have the sale so made set aside, would require something more than a showing of such disregard of instructions. It must show that it would suffer an injury or damage if the sale were allowed to stand. There is nothing in the case to show the value of the premises, or that they did not sell for thejr full value. It is true that appellant, in his complaint, offers a considerable larger bid in case a resale is ordered; but such offer does not purport to be based upon the value of the premises, but may be instigated by considerations entirely other than the value of the land. In Lefevre v. Laraway, 22 Barb. 167, it is said, and the statement supported by numerous authorities, that “neither before nor after confirmation of the report of sale will a resale be ordered upon an offer of increase of price alone.” See also, Adams v. Haskell, 10 Wis. 107. It is evident tbat the sole reason for afDpellant’s complaint is tbat, upon redemption from this sale, be will receive less than if redeemed from a sale for the amount which it instructed its agent to bid; but it is nowhere claimed or suggested tbat the party liable for any deficiency is not abundantly able to pay the same, nor is such party complaining of tbe sale. If the maker of the note is solvent, — and we suppose every man is presumed to be, —it is difficult to. see wherein tbe appellant would suffer any substantial damage on account of tbe land having been sold for less than its agent was instructed to bid. Upon tbe whole case we do not feel j astified in saying that the trial court was wrong in refusing to set aside this sale, and its judgment is affirmed.

Fuller, J., took no part in the decision of this case.