1 N.J. Eq. 320 | New York Court of Chancery | 1831
Let us examine these several mailers, and see how far they are supported by the evidence, so as to be available to the defendant.
1. Was the defendant induced to make, this purchase by the
It appears somewhat singular that Zilley. having an execution on all the property of Rodman, which was tin ample secutity for his money, should consent to purchase thiity-five acres of land, being only part of the real estate, for a full price, when it is evident he was not in want of property of that kind, and that it must prove to him rather an incumbrance than a benefit. But, however singular it may be, I do not find any sufficient evidence to make out against the complainant the charge of fraudulent procurement. It appears Zilley attended the sale, and probably at the request of Rodman. But if the property was to be sold by Rodman himself, when it was kuown that Zilley had an execution upon it for a considerable amount, it was certainly proper that Zilley should be present, to show that he approved of the proceedings. There is some evidence, not very satisfactory however, going to show that he was requested not only to attend, but to bid at the sale; but it was for the purpose of making the property bring a fair price, not to palm it upon him at an exor bitant rate, and thus take advantage improper ly of an act of kindness.
It was alleged that some of the bidders at the sale, especially Philip Richardson, were induced to attend and bid at the instance of the complainant, and with a view of entrapping the defendant. Richardson, on his examination, expressly denies that Rodman used any persuasion or improper means to procure his bid. There is a discrepancy in the testimony of this witness upon another point, that renders it proper to receive his evidence with some caution. Yet as there is no direct testimony to prove any collusion between Rodman and any of the bidders at the sale, the evidence may be of some use to repel any presumption that may arise from circumstances. 1 do not find this allegation supported in point of fact.
After a careful examination of the evidence on both sides, I have not been able to satisfy myself that the charge of fraud or collusion is established against the complainant, and therefore the remedy sought by him cannot rightfully be withheld from him on that ground.
The most important evidence in favour of this allegation is the statement of Rodman himself, made to Wills, when he went to get him to run out the land. He then told Wills that Zilley was a “ little groggy at the vendue,” and bid quite smartly. On the other hand, Rogers, the crier, says, that Zilley was not disordered in his mind or rendered incompetent by the use of liquor. Sheriff Shinn says, he considered Zilley to be sober at the time of the sale. Richardson says, he did not discover him to be drunk. Daniel Williams testifies, that he saw Zilley after the sale, and on the same day, and that he appeared to be perfectly sober ; and further, that he never saw him drunk. James H. Sterling, who was present when Zilley signed the conditions of sale, says, he has no recollection of seeing him intoxicated at that time. And it is to be remarked also, that Zilley, in all the conversations had with different persons after the sale, and which are detailed in the evidence, makes no mention of the circumstance.
But if the fact were made out, it could not avail the defendant, unless he can show that it was procured by the contrivance of the complainant, or that an unfair and improper advantage was taken of his situation. As to the first, there is no pretence for it whatever; and as to the last, it is difficult to arrive at such a conclusion, against the testimony of respectable witnesses, that the sale was a fair sale, and the property worth the amount bid for it, or very nearly so ; and when we see, that shortly after the sale, the defendant was offered within a trifle of the amount he gave for it, and refused the offer. This defence can be of no avail to the defendant.
3. Another ground is, that the property is not worth the money.
Courts of equity seldom interfere to set aside sales and contracts, on the ground of inadequacy of price. They leave the parties to their legal remedies. But when they are called on for extraordinary aid to enforce a contract, they take the liberty to examine into the consideration to be given, its fairness and equa
What are the facts in this case, as to the value of the property ? The defendant bid for it thirty dollars seventy-five cents. There were several persons who bid for the property. Cogswell bid, as he says, three .or four times; his last bid was thirty dollars twenty-five cents. Richardson bid thirty dollars fifty cents, but from his evidence I think it may well be doubted whether he intended to be bound by the bid. The defendant, then, agreed to give fifty cents more on the acre than Cogswell. There is no evidence to show that Cogswell was unable to pay, or that his bid was a sham bid in any sense of the word. On the contrary, he says that his bid was a real bid, made in earnest; and in the absence of proof to the contrary, it must be taken to be so, and that he considered the land worth the amount of his bid. Independently of this, Cogswell says in his evidence, that he considered the property cheap at thirty dollars seventy-five cents per acre, at the time of sale, and also at the time of his examination. Richardson says he considered the land to be worth thirty dollars per acre. David Williams testifies, that Zilley, some little time after the sale, wanted him to buy the property, and offered to sell it to him, stating that the deed was in Wills’s hands, and that he was fully authorized to sell. He came a second time, and appeared very anxious. Witness told him he did not want the property at any price, but nevertheless offered him twenty-seven or twenty-eight dollars per acre, he cannot say which.
It is evident from these facts, that the sum agreed by the defendant to be given for the property, was not far from the real value. Another circumstance on this part of the case has had great influence on my mind ; and that is, that although the defendant has made loud complaints in court as to the extravagance of the price, he has not called a single witness to testify to the value of the land. Surely it would have been very easy to prove the charge, if it were true.
He certainly was an illiterate man, but he was in the habit of transacting his own business; of buying and selling, not only personal, but real property. He is represented to have been a close, contracted man in his dealings, and a tight man to make a bargain with. There can be no objection to a contract made with such a man, unless lie has been grossly deceived or fraudulently imposed on, which docs not appear to have been the case.
5. But it is objected that the deed was not tendered in time, and it is insisted that, under the circumstances of the case, the defendant is at liberty to avail himself of every defence, and hold the opposite party to s( riot rule.
There is no foundation for this objection. According to the conditions of sale, the deed was to be made by the 13th of January, when one third of the purchase money was to be paid, and the residue seemed. Now it is in evidence, that the deed was actually made and executed, at the house of Wills, on the 11th of January, and that it was done in the presence of Zilley. The situation of the parties was such as to render a literal compliance with the conditions altogether unnecessary, if not impossible. Zilley was the purchaser, and he was also the creditor. There was no necessity for his paying one third of the purchase money to Rodman, or giving his notes for the balance. It appears that the deed was left in the hands of Wills, and the purchase money was to be settled on the execution. Sheriff Shinn says, he met Rodman and Zilley afterwards on the road, and spoke to them about this business. They told him they were going to Mount Holly to settle it; and Rodman said, in the ptesenceof Zilley at the same time, that he would leave the sheriff’s fees in the hands of Mr. Neale, who was the attorney. It further appears, that Zilley, after (he execution of the deed, considered the deed as his, and also the property, and spoke of them as such. Shortly after the execution of the deed he went to David Williams, as before stated, to sell him the land. Williams asked him if he had got the deed executed : he said he had, and that it was left in Wills’s hands, and that he, Zilley, had full power to sell the property. He afterwards told Williams that he did not get the deed
In this case, the time of the performance, was not of the essence of the contract; and the rule of this court is, that in decreeing the specific performance of an agreement, time may be dispensed with, if not of the essence of the contract: 7 Ves. jr. 273; 4 Bro. C. C. 329; 12 Ves. 326; 5 Cranch, 262; and the case of Hepburn and Dandas v. Dunlap & Co., 1 Wheat. 204, in nolis. The court, then, may dispense with the time, and it will do it to promote the ends of justice. But independently of this, the whole evidence shows a waiver of the formality of a tender on the part of Zilley, and he cannot now resoit to it for the purpose of defeating the plaintiff’s claim. There can be no doubt that a party may waive his technical right in this respect; and T think there can be as little doubt that such waiver was actually made. It need not be direct, or in writing ; but may be justly inferred from circumstances that would not have taken place without it.
6. Another objection is, that there is a prior mortgage on the
7. There is one matter of defence, which was not set up in the answer, but strenuously urged at the hearing, viz. that the contract was waived.
The testimony of Samuel J. Read was relied on to show a parol waiver. I think it fails to do so. Read was the counsel of Zilley in the judgment and execution. Rodman and Zilley were at Mount Holly, and went to Read for the purpose of making a settlement, as he supposed ; probably it was the time that Shinn saw them, when on their way to Mount Holly to settle the busines, as they stated. In the conversation wThich took place, Read observed that he thought Rodman had done wrong, and that it was a shame to take advantage of such a poor, ignorant man as Zilley. He further observed to Rodman, that if “ Richardson was a real bidder, Amos Zilley had better pay the additional twenty-five cents per acre, and let Richardson have the land ; which Zilley agreed to do. Rodman said, if Zilley would give up the land, he would not ask him to lose any thing ; which Zilley agreed to do. Rodman then said, he would go right away and let Richardson have it.” If I understand the conversation, the meaning of Rodman was not to release Zilley so as to lose the sale of the property, but to lose the extra, bid of Zilley, so that Richardson might take the property at his bid. He was willing to lose the twenty-five cents on the acre, if Zilley would agree that Richardson should take it; and this being agreed on, Rodman went immediately to see if Richardson would lake it, at his bid. But Richardson did not take it, and thus the matter ended. The waiver of a contract may be by parol, but it should be express, and of such a character as to leave no reasonable doubt as to the intention of the parties.
So far from being a waiver, this appears to me to be an express recognition of the contract by both parties. This instrument is under seal, and executed in the presence of two witnesses, and cannot be mistaken. Tf it had been set up as evidence of fraud on the part of the complainant, there might have been some weight in the argument; but it certainly cannot prove a waiver.
8. But lastly, the defendant says the contract is defective, and cannot be enforced : that the articles purported to be articles for the sale of the whole property, whereas only thirty-five acres were sold. The article commences as follows : “ Conditions of the vendue, the property of Samuel Rodman, held this 4th day of January, 1827. The highest bidder to be the purchasar,” <fcc. It does not state whether it was real or personal property that was about to be sold, or whether it was the whole or only a part; but the property to be sold was the property of Samuel Rodman. It is clear, however, that it was land only that was sold, and that only thirty-five acres were set up ; and there is no pretence in the evidence for even a supposition, that Zilley did not know what he was buying. No complaint of this kind is made at the time of the sale, or at the time of the survey of the land, or at any other time, so far as the facts are exhibited.
The assignment of the judgment to Blakely, or the general