Ogilvie v. Richardson

By the Court, Paine, J. These two appeals being closely connected, will be considered together. The material facts upon the questions here presented are these. Hamilton Richardson and William Truesdell executed a mortgage to J. H. Ogilvie on certain lots in Janesville, upon which was a mill, with a right to the perpetual use of four hundred square inches of water, to secure the payment of three thousand dollars, in three instalments of one thousand each. When the first instalment became due, it seems to have been paid by William Richardson, and an assignment of an interest in the mortgage equal to the instalment was made to him, under an agreement, however, that the two subsequent instalments should have priority. Proceedings were after-wards taken to foreclose this mortgage by Ogilvie, when the second instalment became due, and a decree was made for the sale of the property, and that the balance due to Ogilvie be first paid, and then the one thousand dollars belonging to William Richardson. — 159 — On the same day of the making of this mortgage, the mortgagors, haying the right to nse six hundred more inches of water, gave a second mortgage on the same prem-tases, with the right to the whole one thousand square inches of water, to A. Hyatt Smith and others, to secure the payment of twenty-two hundred dollars. The Ogilvie mortgage is conceded to have been the prior mortgage. The second mortgage was assigned to Monroe Atkinson, and was also foreclosed. The property was advertised for sale, under both foreclosures, on the same day,’ the sale under the Atkinson mortgage being however about two hours first in point of time. At this sale the property, including the one thousand square inches of water, six hundred of which were not covered by the other mortgage, was struck off to Ensign H. Bennett, the highest bidder, for the sum of thirty-five hundred dollars, subject to the payment of the amount due upon the other mortgage, that being the express condition of the sale. Erom this sale Bennett went to the other, and bid off the property on that, for the sum of $3,805. Upon this enough was paid down to satisfy Ogilvie for what was then due, and on subsequent proceedings taken by him, he was satisfied for the balance due to him; but the thousand dollars adjudged due to William Biehardson has never been paid, and this is an application by him to compel the purchaser to pay it. After having bid off the property at the Ogilvie sale, Bennett then refused to complete his purchase at the other sale, and the commissioner executed á deed and delivered it to the complainant’s solicitor to be delivered or disposed of as he should see fit. It seems that Bennett was bidding for the benefit of Truesdell, and that he subsequently conveyed the property to Truesdell, including the one thousand square inches of water, six hundred of which he could only have acquired title to by virtue of the purchase under the Atkinson mortgage. It is claimed, on the one hand, that this was the result of an arrangement made between Bennett and Truesdell, and Tallman, Atkinson’s solicitor, by which the latter agreed to take Truesdell’s note for the amount due — 160 — 'Hinson,to deliver the commissioner’s deed to Bennett Bat Bennett denies that he ever assented to the acceptance of this deed, and claims that he supposed he was only conveying to Truesdell the interest he acquired under the Ogilvie Í mortgage. Upon this point there is a material conflict be-' tween his affidavit and those offered on the other side. A. Hyatt Smith testifies that Bennett represented to him that he had purchased at both sales, and had accepted both deeds, and conveyed to Truesdell the whole property, with the one thousand square inches of water; and that on the strength of that statement he loaned Truesdell money secured by a mortgage on the property. Tallman testifies that he delivered the deed to Truesdell, he representing at the time that he was acting for Bennett. This is contradicted by Trues-dell. But we think the admitted acts of the parties serve to corroborate the statements of Smith and Tallman, and to render those of Truesdell exceedingly improbable. In thé first place it is evident that Truesdell intended to acquire the right to the one thousand square inches of water, for he mortgaged the whole to Smith. This fact alone strongly corroborates the idea that it must have been represented to Smith at the negotiation of the loan, that Truesdell’s title to the whole was complete. Truesdell must have known that he could only have acquired title to the six hundred square inches of water covered by the Atkinson mortgage and not by the other, through the sale upon that mortgage. We accordingly find the commissioner’s deed to Bennett on record, and, what is a most significant fact, it was received for record, as appears by the affidavits, at the same moment with the deed from Bennett to Truesdell, and recorded immediately preceding it Taken in connection with the fact that he had an interest in obtaining it, and that all his acts upon the subject were cousistent with the idea that he intended to acquire, and had acquired, the title conveyed by that deed, this circumstance seems to leave no room for doubt that Tallman’s statement that he delivered the deed to Truesdell is true, and that it was put upon record by Truesdell. It may be that Bennett, acting for Truesdell in making the bids, trusted the subsequent transactions mostly to Truesdell, — 161 — without paying sufficient attention to them to understand all the details. But we can have no doubt, from the whole dence, that the commissioner’s deed was delivered by Tall-man to Truesdell, and that although Bennett may not have ■' fully reflected upon the effect of it, yet he must have been aware of the fact that it was done in pursuance of an arrangement between Tallman and Truesdell, and for the purpose of vesting in Truesdell the entire title conveyed at the two sales. The application in this suit is made by Hamilton Richardson to compel Bennett to pay in the surplus, after satisfying the amount due to Atkinson, which was satisfied by the arrangement between Truesdell and Tallman. The court below refused both applications upon the ground that it had no power to enforce the orders if made. Independent of this reason, we think the applicants were entitled to the orders. The fact that Bennett was bidding for the benefit of Truesdell, cannot be set up by him to affect the rights of other parties. That is a matter that he must arrange with Truesdell. It would be productive of great uncertainty and injustice in these sales, if a party could come and bid upon a private understanding between him and another, and then set up that to release himself from his contract. We think also that the weight of evidence is decidedly in favor of the conclusion that he assented to the delivery of the commissioner’s deed for the purpos'3 of vesting in Trues-dell the title conveyed at the Atkinson sale. And certainly it would operate as a fraud upon all -'the parties interested in the property, to allow him, after having secured the title at the Ogilvie sale, to repudiate his bid at the other. It must be assumed that those parties interested failed to protect themselves, relying on his bid. They allowed him to bid at the Ogilvie sale, and take the. property for the amount due on that mortgage, because he had previously bid $3,500 subject to the payment of the Ogilvie mortgage. To allow him then, after bidding it off at the Ogilvie sale, after thus lulling the parties into inaction by his previous bid, to then repudiate it, would operate most unjustly upon their rights, and ought not to be tolerated. And we do not — 162 — eye:a that a technical defect in acquiring jurisdiction a portion of the parties in the Atkinson suit, ought to aTail Rim as any defense against this application, for the reason that his title was good under the Ogilvie sale, and a good title was all he could ask. And the two sales, under the peculiar circumstances, were so connected together, that after getting a good title under one, which he secured undoubtedly by virtue of his bid at the other, he ought nof ' o be allowed to repudiate the other on account of a mere te 2-nical defect, which could, under the circumstances, have 20 effect upon his title. As to the claim that the instalrh nt assigned to William Richardson, was really paid by ILat, il-ion, out of the funds of Richardson & Truesdell, it is not s ip-ported by the evidence, and we must take the decree uj on that subject to be conclusive. Uor do we think the reas m given by the court below for refusing the orders is sufficient. The authorities establish that a purchaser, by bidding at such sales, becomes a quasi party to the proceeding, and subjects himself to the jurisdiction of the court. And it would be strange if it were not so — if a man might bid, and then abandon it at pleasure, and thus baffle wantonly the execution of judgments. We shall not attempt to determine now what measures should be resorted to to compel an obedience to the orders, or whether there are any that can ; but we think the court should go as far as its power extends and make the proper order, and if there are then no means of enforcing it, it will be a defect in the law upon that subject. The order appealed from must in each case be reversed, with costs, and the cause remanded with directions to enter an order in each, that the purchaser pay into court the amount of his bid remaining unpaid. After the time limited by rule of court for making a mo tion for a rehearing had expired, and the cases had been remitted to the circuit court, an application was made to extend the time for making motions for a rehearing in these cases, and was overruled in the following opinion: By the Court, Paine, J. After the decision of this court — 163 — in the above oases, no motion for a rehearing was made within the time prescribed bj the rule; and after the expiration of that time, the cases were regularly remitted to the circuit court. Subsequently leave was granted extending the time to file motions for a rehearing, subject however to the opinion of the court whether such motions could be entertained after the cases had' been regularly remitted. We now think they cannot, for the reason that the cases are no longer pending here. Having been properly remitted to the circuit court, the questions involved are no longer before us; and we know of no way to get the cases here again, unless possibly it should be done by the consent of the parties, by setting aside the remittitur and returning the record. When cases have been once decided here, and regularly remitted after the time to move for a rehearing has expired, the function of this court with respect to those cases is exhausted. If we should entertain these motions now, we see no reason why it might not be done at any indefinite time hereafter; and thus parties could never know when their cases were determined. For these reasons the motions are denied, with costs.