Parmenter v. Walker and Others

Dubfee, J. The defendants, Kenrick Walker and Emeline, his wile, being mortgagees — the former of the plaintiff, and the latter under a deed from the plaintiff and his wife — sold the mortgaged premises at auction, by virtue of the powers of sale in the mortgages, to one Henry A. Parker, who afterwards conveyed the same back to the said defendants, conveying to each the premises bought of each respectively. The plaintiff, who claims to have succeeded to the right of his wife now deceased, brings this bill, in part, to redeem the mortgages and to compel a conveyance to him of the mortgaged premises, on the ground that the sale of the same was virtually a sale by the mortgagees to themselves. The answer of Kenrick Walker admits, “ That he and the said Emeline advertised under their mortgages ; that Henry A. Pai’ker bid off said property at said auction sale under the following circumstances: this respondent and said Emeline Walker, in order to protect themselves from'loss under these mortgages, agreed with said Parker, that if he would bid upon said mortgaged property to the amount of their mort *227 gages at least, in case so much, should not be bid by others, they would purchase the same of him at the price by him bid, and would save him from any loss in consequence of his so buying said property, or would take the same off his hands. And they admit that said Henry A. Parker has conveyed to them, in pursuance of said understanding or agreement, said premises.” Emeline Walker, in effect, adopts the answer of Kenrick Walker as her own. The counsel for the said defendants, admitting that a mortgagee, purchasing either directly or indirectly at his own sale under a power in the mortgage, acquires as against the mortgagor only a defeasible title, contends, nevertheless, that the title of the defendants is valid, for the reason that their agreement with Henry A. Parker left him at liberty either to re-sell the premises to them, at the price bid, or to retain the same, at his own option, it being competent for a mortgagee, after the sale, to buy the mortgaged premises from the purchaser. But assuming, what is not quite so unequivocally stated in the answer as it might have been, that the agreement with said Parker left it optional with him to retain the property, we think the defence cannot prevail against the claims of the mortgagor. It is obvious that the supposed privilege, if allowed, would be liable to frequent and easy abuse, and on that account would be open to serious objection. But, furthermore, the -reason why a mortgagee cannot properly become a purchaser at his own sale, is because, as a purchaser, he would have an interest adverse to that of the mortgagor, whose interest it is his duty, in selling under the power, to promote with the* utmost good faith. And so, under such an arrangement as that disclosed in the answer, (supposing Parker agreed to bid as proposed,) the mortgagee having protected himself from loss, (as he might do completely, the property being sufficient, by stipulating for a bid large’ enough to cover both the mortgage debt and the expenses of the sale,)' would cease to have any pecuniary interest in increasing the number or stimulating the competition of bidders, or. in giving such information or proposing such terms as would- *228 promote these ends ; while, on the:other hand,-he would have an interest or inducement, more or less influential, according as he valued his chances of repurchase, unfavorable to these ends. "We deem it to be the policy, of the law not only to prevent the practice of .fraud, but also to fake away the temptation.to its practice. See Devoue v. Fanning, 2 Johns. Ch. 251; Campbell v. Walker, 5 Ves. 678 ; De Caters v. DeChaumout, 3 Paige, Ch. 178; Mapps v. Sharpe, 32 Ill. 13 ; Johnson v. Bennett, 39 Barb. 237, 249; Abbott v. American Hard Rubber Co. 33 Barb. 578, 594; Sypher v. McHenry, 18 Iowa, 232. We think the plaintiff is entitled to redeem the mortgages, and that the cause should be .sent to a master to ascertain the amount , which is due .-thereon,, and to take such further account between the -parties to this suit as- their respective rights or claims on such parties may require.