2 N.J. Eq. 214 | New York Court of Chancery | 1839
This is an application by John Moir, a defendant, to set aside a sale made under the execution issued
Th,e power of the court to interfere in this case is not denied. It has been frequently done in the state of New-York, and in this court. No exercise of the power of the court can be plainer, than that of controlling, sales by public officers on its own process. Williamson v. Dale, 3 John. Ch. Rep. 290; Duncan and others v. Dodd and others, 2 Paige, 99 ; Requa v. Rea and wife, Ibid, 339,
In this court, the case of the Ex’rs of Gouverneur Morris v. iSwartwout and others, was cited at the bar, though not reported. The oases referred to on the argument from the English courts, on the subject of the opening of biddings, though not applicable to our method of making sales, show a very strong disposition to open sales upon the single ground that more can be
In the present case, I have no doubt either as to the power of the court, or its plain duty, to interpose and set aside this sale. The bare statement of the facts show, that an accident on the part of the agent in missing the road, and a mistake wholly unintentional in the complainant’s solicitor in naming the house at which the sale was to take place, have occasioned the whole difficulty ; and it would be a reproaeh on- the administration of justice if no remedy could be afforded. Had Mr. Moir, or his agent, neglected his business, there might have been some rea - son against interfering; but they both have shown diligence, and certainly did intend to be present and to bid, and would have done so but for the accidental occurrences which have been-stated, I consider the misapprehension under which the agent labored, and honestly so no doubt, as to the situation of the place where the sale was to take place, and the wrong information given him by the complainant’s solicitor, as a sufficient ground for interference. Moir was not a mere stranger, who contemplated attending the sale as a purchaser, but a party having a deep in - terest, and manifesting in all his conduct a determination to he present, and to bid the amount due him. The property was worth the amount, and his mortgagor was insolvent, he had therefore every motive for such a course.
But it is said that it is dangerous to interfere with sheriffs’ soles; that they have a right, as public officers, to exercise a discretion as to sales, and the manner of conducting them; and' that, if the court will set aside such sales, purchasers will not attend. A sheriff is a public officer, and as such has a certain discretion
As to the course pursued by Mr. Travers, it is very-clear his interest and that of Mr. Riggins, the purchaser, was one in this transaction. Mr. Riggins was his relative, and probably has acted throughout with a view to befriend Mr. Travers, which he had a perfect right to do. One thing is certain; Mr. Travers meant to get this property at as cheap a rate as possible, and' availed himself of the opportunity which he considered presented itself of defeating this second mortgage. At the first day fixed for the sale, after learning that a sale for the amount of the first mortgage would defeat the second entirely, he still pressed the sale of the property, which must then have taken place but for the commendable course pursued by Mr. Williamson. He may have excused this course to himself upon the ground that considerable improvements had been put on this properly by himself and Mr. Riggins, and that without such improvements the property would not have been worth the amount of this second mortgage. This consideration, it cannot be pretended, should
The place, too, for the sale, was fixed by Mr. Travers — a place every way unfit for such a sale, and only to be excused for the reason that it was near the premises to be sold.
The sale made by the sheriff must be set aside, and a new sale made, upon a readvertisement according to law. Each party to pay their own costs on this application.
Sale set aside.