Fenner v. Tucker

Bosworth, J. Upon the statements of the bill admitted in the answer, it is clear, that prior to the sale of this land under the power contained in the mortgage of James T. Slocum, the complainant had a right to redeem by paying the amount due on the two mortgages prior in date to his. As between him and the respondent, he might do this and hold the land until the respondent should pay his reasonable contribution. Where there are two distinct parcels of a tract of land, of which two persons are severally seised, the whole tract being under mortgage to a third party, the one entitled to either tract has a right to redeem the mortgage, and to take an assignment and hold the land until the other pays his share. The land is charged with a burden, of which each part ought to bear no more than its due proportion. 1 Powell on Mortgages, 261-316, and cases cited. If the sale under the mortgage of Slocum is a valid sale, and the respondent a bond fide purchaser at that sale, the complainant is cut off from his right to redeem, because the title sold was prior to his. Sales under mortgages with power to sell, are regarded by courts with a jeaious eare. They furnish a very summary mode of obtaining payment of a mortgage debt and of foreclosing an equity of redemption, and should therefore be conducted with perfect fairness, in order that the mortgagor’s rights, or those of his assignees who may have purchased his equity for valuable consideration, may not be sacrificed. If, therefore, the power of sale conferred by the mortgage is not strictly and fairly pursued; if the execution of the power is tainted with fraud; or if ány mistake is *555 made in conducting .the sale adapted to mislead those who might desire to purchase, so that the sale, if at auction, occurs under circumstances calculated to depreciate the value of the property sold, or prevent it from bringing a fair auction price, the sale will be held invalid. The sale authorized in the power annexed to this mortgage, was to be made after advertising the premises for the space of thirty days, prior to -the sale. A sale without this notice would certainly be void. It was incumbent therefore on the mortgagee to give this notice. In giving it, he must advertise the premises to be sold, and give the .public notice of the time and place of sale. If the premises are not truly described, it cannot be truly said that the premises are advertised; if the time and place of sale are not made reasonably certain, it cannot be said that public notice of the sale is given. In both respects adverted to, the notice given of this sale is defective and insufficient. The tract advertised was a tract of land containing four acres more than the tract embraced in the mortgage. Although thé tract sold was contained in the tract advertised, yet the tract advertised was not the tract to be sold. Persons who might desire to purchase the quantity of land embraced in the mortgage might not want to buy the tract advertised to be sold ; and therefore might not attend the sale. The notice given bore date January 21st, 1858, and the sale was appointed to take place on February 12th. Now, although this notice was published in a paper issued in January, 1859, it was not proper notice of a- sale., to take place in February, 1859.' At least, it might mislead the public as to the time of sale. Being dated January, 1858, it would naturally point to the succeeding month of February;. and those who read it would naturally suppose it an advertisement of a sale of the past year, continued inadvertently, or published by mistake. But there is another ground on which the sale was clearly invalid, arising out of the’ conduct of the purchaser at the sale. By the testimony of Ephraim Jackson, whose deposition is in the case, it appears that after the bidding had commenced, Tucker, the respondent, having made the first bid, and the witness raising his bid, and when several rival bids had been *556 made by them respectively, crossed over the platform, and asked the witness why he bid against him. The witness replied, that he thought it was a free sale. The respondent said, the witness ought not to bid against him as he had lost largely by the Potters, and expressed some feeling about it, whereupon the witness withdrew and the estate was struck off to Tucker. The estate, upon the evidence, sold for much less than its' value. This witness states in his testimony that he had intended to give a very much larger amount for it than the sum for which it was sold. In Sugden on Vendors and Purchasers, p. 30, it is laid down “ that if a purchaser by his conduct deter others from bidding, the sale will not be binding;” and the doctrine is illustrated by a case cited, which is very similar to this. Upon a sale by auction of a barge, a bidder addressed the company present, saying, that he had a large claim against the late owner, by whom he said he had been ill used, whereupon no one offered to bid against him ; but the auctioneer refusing to knock down the property to a single bidder, a friend of the bidder’s bade a guinea more, and the first bidder then made a second and higher bid, amounting, however,'to only one fourth of the prime cost of the barge; it was held that there was no legal sale. In this case the interference was quite direct, and the bidder was deterred, and the estate was sold for much less than it would have sold for without the interference. See Fuller v. Abrahams, 3 Brod. & Bing. 116; S. C. 6 Moore, 316. See also Troup v. Wood, 4 Johns. Ch. Rep. 228, 254; Doolin v. Ward, 6 Johns. Rep. 194; Wilbow v. Howe, 8 Johns. 346; Thompson v. Davis, 13 Johns. 112. For these causes we think that the sale under the power was void, and must be set aside ; and the plaintiff must be allowed to redeem the mortgages on the estate held by the respondent, and upon paying the amount due upon them, he will be entitled to have them assigned to him.