Davis v. Keen.

WaleeR, J., after stating tbe case: Tbe Court submitted tbe first issue in practically tbe same form as-the one proposed by tbe appellant, tbe introduction of tbe word “advertising” being proper under tbe circumstances. Tbe verdict on that issue was in bis favor, so no barm was done by tbe Court’s amendment, even if it was improper. Tbe addition of tbe words “as alleged in tbe complaint” to tbe second issue, would not ba^e essentially altered its mean *502 ing, as issues in. contemplation of tbe law bave reference to tbe pleadings and are based upon them. Tbe issue as submitted substantially followed tbe allegation of tbe complaint, as tbe effect of tbe latter is to charge tbat tbe appellant disparaged tbe title for tbe purpose of deterring bidders and preventing fair competition. It can make no difference wbat particular words are used to express tbe idea, for it all comes to tbis, tbat tbe appellant bas committed a fraudulent act, so tbat be bas secured an advantage to wbicb be is not fairly entitled, and tbe law will not stop to inquire by wbat name it should be called. Tbe case was argued before us as if it were an action for slander of title; but it is not. Tbe plaintiffs claim no damages for any injury done by smirching their title; they ask, on tbe contrary, for equitable relief, in tbat they seek to set aside tbe sale and to cancel tbe deed because of tbe fraudulent conduct of tbe appellant in suppressing tbe bidding. Tbe assertion of tbe appellant at the sale, tbat there was no deed, could imply nothing else than tbat tbe title was defective, and tbat evidently was the construction placed upon it by those who intended to bid at tbe sale. He intended to impugn tbe title by insinuation if not by a direct attack upon it. Cardon v. McConnell, 120 N. C., 461, does not, therefore, apply. Tbe third assignment of error is too general and cannot be sustained. Besides, any omission to state tbe evidence or to charge in any particular way, should be called to tbe attention of tbe Court before verdict, so that tbe Judge may bave opportunity to correct tbe oversight. A party cannot be silent under such circumstances and, after availing himself of tbe chance to win a verdict, raise an objection afterwards. He is too late. His silence will be adjudged a waiver of bis right to object. Tbe subject is fully discussed in Simmons v. Davenport, 140 N. C., 407. *503 Tbe first three assignments of error are therefore overruled. The fourth and principal assignment is equally untenable. It was admitted that Galvin Davis owned the land which he mortgaged to Reek & Eoust. The sale was made under the power contained in the mortgage, and the substance of the evidence is that the appellant, by false representations as to the state of the title, induced others to desist from bidding, so that he could buy the land at a grossly inadequate price, which he did. It is impossible to read the testimony without coming to the conclusion that the appellant intended what he said to those who proposed to buy should have the effect that it did, so that the sale would be chilled or the bidding stifled and he thereby would be enabled to get the land for little or nothing. This was a clear attempt to perpetrate a fraud, as the law views it, and a court of equity will not permit it to go unrebuked. It may be said generally that mere inadequacy of price, independent of other grounds of relief, will not invalidate a sale, but it is a cogent circumstance to be. considered by the jury when it appears, in connection with it, that there has been unfairness or that an undue advantage has been taken or that there has been any other inequitable conduct, and a court of equity will readily seize upon any such incident as a ground of relief when the property has sold for a price so low as to result in hardship. It is plainly just that it should interpose in such a case. Whether in any case, if the inequality between the price and the real value of the land be so great “as to shock the conscience and confound the judgment of any man of common sense,” the Court will inter-}3ose, we need not inquire. Judge Nash said in Potter v. Everitt, 42 N. C., 152, that “mere undervalue is no ground for setting aside a contract, unless it be such as amounts to apparent fraud, or the situation of the parties be so unequal as to give one of them an opportunity of making his own terms.” In more recent cases this Court has expressed a doubt as to whether inadequacy of price, nothing else appear *504 ing, is sufficient ground upon which to invoke the aid of a court of equity. Trust Co. v. Fortes, 120 N. C., 355; Monroe v. Fuchtler, 121 N. C., 101; Osborne v. Wilkes, 108 N. C., 651. See, also, 28 A. and E. Enc., 813; Meath v. Porter, 9 Heist, 224; 2 Jones on Mortgages (6 Ed.), sec. 1915. But we do not have to go far to find abundant authority for the position that such inadequacy, when coupled with any other inequitable element, even though neither, when considered alone, may be sufficient for the purpose, will induce a court of equity to interpose and do justice between the parties. 17 A. and E. Enc. (2 Ed.), 1003. As, for example, when there has been a resort to any method for the purpose of unduly inflating or depressing the price. “A sale at auction is a sale to the highest bidder, its object a fair price, its means competition. Any agreement to stifle competition is a fraud 'upon the principles on which the sale is founded.” Smith v. Greenlee, 13 N. C., 126. Free and fair competition being the very essence of such a sale, the principle just stated must necessarily apply to all cases where any means, such as false representations or deception, have been unduly employed to subvert this principle and acquire the property upon unjust terms. The reports are full of analogous cases. Brodie v. Seagraves, 1 N. C., 96; Morehead v. Hunt, 16 N. C., 35; Goode v. Hawkins, 17 N. C., 393; McDowell v. Simms, 41 N. C., 278; s. c., 45 N. C., 130; Ingram v. Ingram, 49 N. C., 188; Dover v. Kennerly, 44 Mo., 145. “In all public sales, whether made by a private individual as an auctioneer, or by an officer of the law as a sheriff, under an execution, the object is to secure to the person whose property is sold, a fair price, and to the'creditor satisfaction • of his debt. Puffing or by-bidding is a fraud on the vendee, as it has the effect of enhancing the price upon him, and any agreement not to bid, made for the purpose of paralyzing competition, is a fraud on the vendor, and vitiates the sale.” Bailey v. Morgan, 44 N. C., 356. Sugden puts a ease like ours and *505 says, if a purchaser by bis conduct deters others from bidding, the sale will not be binding, and cites the barge case, Fuller v. Abrahams, 3 Broad. & Bing. (7 E. C. L.), 116, which is in principle similar to the case under consideration. 1 Sngden Vend, and P., p. 30. Still more like this case is Fenner v. Tucker, 6 R. L, 551. See, also, 2 Jones on Mort. (6 Ed.), secs. 1912, 1910, 1911. “A purchaser who is guilty of any fraud, trick or device, the object of which is to get the property at less than its value, will not be permitted to enjoy the fruits of his purchase so obtained.” Sec. 1912. It is not required that the mortgagees should be present at the sale, for they can execute the power by an attorney duly appointed for the purpose of making the sale. Parker v. Banks, 79 N. C., 480; but their absence, as well as any other relevant fact which tends to show the true situation at the time the bid and purchase were made and the circumstances under which they were made, may be considered by the jury upon the question of fraud. When we examine the facts of this case, even those that are not seriously controverted, we find little or no difficulty in discerning the true nature of this transaction. It appears that the mortgage was made to secure a debt of five dollars; that' the sale, though it may have been duly advertised, was made without the actual knowledge of the beneficial owners of the property, who are the' heirs of the mortgagor. The mortgagees, themselves, were not present at the sale; the defendant Keen, while he did not. represent them as agent, in the sense that he was authorized to act for them at the sale, and therefore- their alter ego, seems to have taken -a very active part in the conduct of the sale, and the jury have found, as will appear by the verdict, when- construed in the light of the evidence and the charge of the Court, that he falsely impeached the title of Calvin Davis for the purpose of stifling competition and buying the land at a price below its real value. There can be no doubt that he looked upon this land *506 with a covetous eye, and was willing to seize the opportunity presented of gratifying his cupidity. It is of little or no importance whether he said enough to make .him liable in damages for slander of title, for if he accomplished his purpose by other evil means or by artifice just as effective, it is quite sufficient for a court of equity to require a restoration by him of what he has thus wrongfully obtained. The sale was anything but a fair one, and it would be a reproach to the administration of justice if it were permitted to stand. One of the most important functions of a court of equity is to afford relief in just such eases. Everything in the case strongly appeals to the conscience of the Court in behalf of the plaintiffs and clearly entitles them to its protection. We think the case was in all respects correctly tried. No Error.