Phillips v. Hull

Mr. Justice Mercur delivered the opinion of the court, December 30th 1882. This is an action of ejectment to recover land bought at [571] sheriff’s sale by the plaintiff in error, as the property of the defendant. The plaintiff owned and was interested in judgments against the defendant in error aggregating about $11,000. The latter seeks to recover on a parol agreement made with the plaintiff in error by which ho was to sell the land at sheriff’s sale, buy it, and hold it until a private sale thereof could be made, and after the amount due to him was paid, the defendant in error was to have the residue. The latter was to advance nothing, to pay nothing. Without his assent the plaintiff could have sold. The defendant made no agreement that he would afterwards purchase the land at any price. If this were the whole ease it is very clear the defendant in error could not recover. As the purchase was made, and the money paid by the same person, a refusal to fulfill the agreement is no more than the violation of a parol agreement, and equity will not decree the purchaser to be a trustee: Kisler v. Kisler, 2 Watts 323; Sidle v. Walters, 5 Id. 391; Robertson v. Robertson, 9 Id. 32; Fox v. Heffner, 1 W. & Serg. 372; Jackman v. Ringland, 4 Id. 149; Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158; Bennett v. Dollar Savings Bank, 6 Norris 382. It is claimed, however, by the defendant, in error, that the plaintiff was guilty of a trick or artifice whereby the effect of the sheriff’s sale was avoided. It may be conceded that a trick or artifice unknown to the defendant in error which operated to his prejudice would have that effect. If however he had full knowledge of the alleged fraudulent act and participated in it, or if the act now complained of did not operate to enlarge or affect the title which would otherwise have passed by the sheriff’s sale, then the equitable rule does not aid the defendant in this case. The first complaint is that the plaintiff in error induced the Mullens, who were later judgment creditors, to stay away from the sheriff’s sale and not bid against him, by representing that if he bought it the defendant was to have the privilege of selling the land at private sale for his benefit. All this conversation with the Mullens was in the presence and hearing of the defendant and his wife. They participated in it. At the same time an agreement was made as to the payment of the Mullen judgment. The defendant in error and his wife each testified that plaintiff said he would give $100 on it, and that they would pay $100 in com, and that he would guarantee the payment of the residue of the judgment. The Mullens are not here complaining. They are not parties to this suit, nor interested in the judgment. No question arises with any creditor of the defendant. This is purely a question between the parties and between them alone. Whatever was said and done to prevent the Mullens from bidding at [572] the sale, was with the knowledge and assent of the defendant. In contemplation of law it was as much his act as the act of the plaintiff. If it was wrong he was a party to that wrong. He cannot now set it up to affect the sheriff’s sale. The other complaint is that the plaintiff bid only $4000, instead of about $11,000, as he should have done. If however, in all respects, he recognizes his duty and obligation to be the same as if ho had bid the larger sum, we do not see how the defendant is prejudiced by the smaller bid. The latter testified that a few days after the sheriffs sale the plaintiff informed him that he had bought the farm for $4,000. At this he complained; but on being told that it was better for him as it saved sheriff’s percentage, and should not make any difference in their bargain, he was satisfied. This subsequent assent was a ratification as effective, as if the bid had been previously authorized. The defendant testifies that his liberty to make a private sale was not limited to any specific time. The plaintiff swears it was to be within one year. Three other witnesses, Beeman, McCracken and Webb, each testify to the admission of the defendant, indicating he was to have one year only in which to effect a sale. If, however, no time was specified, and he was under no legal obligation to sell, he could not claim his option to continue for an unreasonable time. In fact the plaintiff did extend the time for six months beyond the year. In the mean time an offer of $13,000 was made to the defendant for the land, but he refused it. All this time he was in possession of the property and at most paying no more than the-interest o:i the indebtedness. On demand of possession by the plaintiff he gave it up, without being ejected by legal process, and after-wards brought this suit. The plaintiff in error admits an arrangement was made substantially as defendant testifies, varying as to the time in which the latter might sell it. But he further testifies that at all times since the sheriff’s sale he has been, and now is ready and willing, on payment of the amount due him, to convey the land to the defendant or to any person he may designate: With the exception of about one year’s interest on the judgments of the plaintiff no part of them has been paid since the sale. The defendant in error seeks to recover possession of the land and hold adversely without making payment. His claim is one in equity only. He must first do equity. He must cither pay or tender payment. He has not done either. His own testimony shows no such artifice or fraud on the part of the plaintiff as to relieve him from this obligation. The learned judge under the whole evidence should have affirmed the first, second and tenth points submitted by the plaintiff in error, as well as the eleventh, that [573] the verdict be in his favor. In so far as the other specifications are in accordance with this opinion they are sustained. Judgment reversed and a venire facias de novo awarded.