Forster v. Hayman

The opinion of the court was delivered by Lowrie, J. Though it is not clear, yet it may be conceded, that there was a general instruction here that the plaintiff had a right to recover; and we think it was right. There was no dispute about the fact of the defendant’s purchase, and of his refusal to perform, and that there was a loss on resale; but it is supposed that because ten per cent, was to be paid down, otherwise the property should be put up again, therefore there is no other penalty for the refusal. It is enough, however, that such conditions have never been so understood; and neither the sheriff nor the plaintiff in the execution has any right to make conditions beai’ing such an interpretation. Such a condition is intended only as a sort of security that the purchaser will fulfil his contract of purchase. It is not a penalty for a failure, but a pledge to prevent it. The contrary supposition would appear strange, where the condition requires the whole or the greater part of the bid to be paid down. The point, however, that was cleai'ly decided by the judge at Nisi Prius is, that the first purchaser is not discharged from his liability by the fact that one of the mortgagees was the purchaser at the second sale, the price being less. Now, even admitting, which we do not think of doing, that such a purchase would extinguish the debt of the mortgagee, it by no means follows that the liability of these defendants on their previous purchase is discharged. Their purchase and refusal rendered them immediately liable for the difference on resale, to be collected in the name of the sheriff, for the use of the defendant in execution and his lien creditors; and the purchase by the mortgagee does not relieve them from this liability, for they had no part in that transaction, and can derive no advantage from it. The accidental advantage which they suppose that the mortgagor derived from the' purchase by the mortgagee involves no merits of theirs, and discharges none of their duties. Judgment affirmed.