27 N.J. Eq. 507 | N.J. | 1875
It is said by the appellee, that this is not an appealable order or decree, and that the appeal should be dismissed for want of jurisdiction in this court. Our statute enacts that “ all persons aggrieved by any order or decree of the Court of Chancery, may appeal from the same, or any part thereof, to the Court of Errors and Appeals,” &c. Rev. 1874, p. 82, § 114. The appellant is surely aggrieved by this order, if, as he claims in his petition, his homestead farm is sold from him by an illegal sale and for an inadequate price, caused by mistake and misrepresentations, and all relief is denied. It reaches the merits of the controversy between him and the purchaser, and affects his substantial rights in the cause. It is thus within the reasoning of the opinion of this court in Camden and Amboy R. R. Co. v. Stewart, 6 C. E. Green 484; and the facts agree with the case of National Bank v. Sprague, 6 C. E. Green, 458, where there was an appeal from an order to set aside a sale in chancery, because it was illegal. It was there decided that such order was appealable, and not merely discretionary. A full consideration of the principles involved -will be found in these cases, which rule this, and determine that the order is appealable.
The right of the Court of Chancery to set aside sales made by its officers, and restrain the delivery of the deeds to purchasers, cannot be doubted upon a proper case made. Where such sales are conducted contrary to the requirements of law, or when, through fraud or mistake, injustice has been done, they will be set aside. And this- is done even when the purchaser is not a party to the suit, for, by such purchase under a legal sale, he becomes subject to the jurisdiction of the court by whose judgment and execution it is made. See National Bank v. Sprague, supra. Here the purchaser, Anthony Bullock, as one of the executors of William W. Bullock, deceased, was a complainant in the suit for foreclosure under which the sale was made. There is, therefore, no difficulty because proper parties are not before the court.
But there is a point that was not in the brief of the counsel who argued the case before the Chancellor, nor presented for his consideration, which so seriously affects the parties interested in this sale, that it demands the careful scrutiny of this court. This point was not purposely withheld, otherwise it would be instantly rejected; but it was overlooked until suggested here during the argument.
It is sometimes said that this court, on appeal, will not permit parties to raise objections which they did not present to the court below, not only in justice to that court, but also to prevent surprise and abuse by reserving points expressly for further litigation. These results should always be guarded. But where the entire proceedings are before the appellate court for review, there can be no reason, where there is no intentional omission, and the parties have acted in good faith, why the whole case should not be examined and determined on appeal. It would cause needless delay and expense to send the cause back to the Chancellor for re-hearing, upon the same pleadings and facts, when the result might be that the cause would be returned here for the further consideration of this court.
In Beekman v. Frost, 18 Johns. 544-559, the reasoning
It appears that, at the sale, and prior thereto, the legacies to Emily Woodward, amounting to $10,000, and to Mary B. Woodward, amounting to $4000, given to them by the last-will and testament of Robert Woodward, deceased, and charged upon the farms devised to Edward B. Woodward and Robert Woodward, the petitioner, were estimated as fixed and absolute encumbrances charged on these lands, and to be paid in the proportion of one-half by the purchaser of this farm. The course of the bidding is thus stated by the witnesses. It was first, apparently, the understanding that the farm was being-sold subject to the Edward Black mortgage of about $5000.
It thus appears that both the officer entrusted with the sale of the property, and the purchaser, made representations to bidders at the sale relative to the amount of these legacies that were charged on this farm, and their bids were affected by such information. Both the sheriff and Mr. Bullock doubtless spoke what they believed to be true. The sheriff probably derived his information from Bullock. But the statement was not true. The legacies had never been apportioned upon the respective farms devised to Robert Woodward and Edward B. Woodward, except by a parol arrangement that each should pay one-half the interest. But more important still, Emily Woodward was only to receive the interest of her legacy of $10,000 during her life, and at her death, if she left no lawful issue, the legacy was to revert back to Robert Woodward’s estate, and his 2’esiduaiy legatees were to be forever exe2npt from paying the sa2ne. She was fifty-three years old at the time the property was sold, and unmarried. It was almost a certainty that she would have aio issue, and the residuary legatees would not be charged •beyond the payment of the annual interest of her legacy •during her life.
The legacy to Mary B. Woodward of $4000 was with the ‘ same conditions, but as she was only seventeen years old, there was a greater probability that she would marry and have issue, so that the legacy would become absolute. The residuary legatees were Edward B. Woodward and Robert Woodward.. These legacies were chai’ged on their farms, and if either Emily or Mary died without issue, the farms were
In Marlatt v. Warwick and Smith, 3 C. E. Green 121, one of the purchasers had a paper stating the amount of encumbrances, which made them $3000 more than the actual amount. The Chancellor said that if the- paper were shown by him, the fact that the encumbrances were overstated would be sufficient to set aside the sale; Such a misrepresentation made by the person who became the purchaser, whether innocently or fraudulently, should set aside the sale.
A judicial sale will be set aside where there is surprise, or misapprehension created by the conduct of the purchaser, or of the officer who conducted the sale. Lefevre v. Laraway, 22 Barb. 167; Liing v. Platt, 37 N. Y. 155; Collier v. Whipple, 13 Wend. 224; Seaman v. Riggins, 1 Green’s Ch. 214; Campbell v. Gardner, 3 Stockt. 423; Cummins v. Little, 1 C. E. Green 48.
There has been such misapprehension in this case, and the order refusing to set aside the sale should be reversed, but without costs to either party in this court or in the court below.
For reversal — Beasley, C. J., Depue, Dixon, Green, Knapp, Lathrop, Lilly, Reed, Scudder, Van Syckel. 10.
For affirmance — Clement, Wales, Woodhull. 3.