Kauffman v. Walker

Tugk, J., delivered the opinion of this court. Judicial sales will not be set aside for causes that the parties in interest might, with a reasonable degree of diligence, have obviated. Every intendment will be made to support them. But where the court can see that injustice will be inflicted by the ratification of a sale upon a party not in default, by reason of the carelessness or omission of its own officer, it should interfere to prevent it. Several objections have been made to this sale, but we think it necessary to advert only to two, the others being insufficient. We are satisfied that the property was sold for much less than its value, if the opinions of the witnesses are to be relied on. And this result was probably caused by the imperfect manner in which the property was described in the notice of sale. The advertisement is designed not only to let the public know what property is thus brought into market, but also to afford the owner an opportunity to redeem it from sale, or to prevent its being sacrificed, Alexander vs. Walter, 8 Gill, 260. Some of the witnesses say, and among them one who had owned this property for ten years, that they would not have known,from this notice, what property was to be sold, unless they had known the number of feet from Canal street. City property is often described in this way, but a more particular description should be given, if the property be susceptible of it, as we think this was. Without intending to intimate any such purpose in the present case, for there is no evidence of the fact, it appears to us that if the purchaser, or others, had colluded with the trustee to make the property sell for less than its value, by keeping the owner in ignorance of the sale, they [241] heed have resorted to no form of notice, if he advertised at all, better calculated to produce that result, than the one under which this house and lot were sold. It is to prevent the possibility of injustice from such causes that notice of the sale is required, and that includes a description of the property, by which the owners and the public may be informed. If Kauffman had had notice of - this decree, he might, if the advertisement had fallen under his eye, have conjectured what property the trustee proposed to sell. The knowledge of one fact might have put him on inquiry as to the other. But the proceeding was ex parte; he does not appear to have known even that the petition had been filed. To be sure, he was not entitled to notice in fact of these proceedings, but, in the absence of it, no inference of knowledge of the sale should be drawn, from this advertisement, to his prejudice. The court acts for all the parties, through its officer the trustee, and to it they look for protection against the consequences of his acts or omissions.We do not think it dan be averred that the trustee did all that was reasonably required of him, in order to bring this property fairly into the market. This error on his part, and the inadequacy of price, are reasons for vacating the sale, though the latter objection alone, under the decisions of this court, might not, probably, be sufficient. Glenn vs. Clapp, 11 G. & J., 1. Cohen vs. Wagner, 6 Gill, 251. Johnson vs. Dorsey, 7 Gill, 269. The purchaser has an interest in maintaining the sale, but, as he buys subject to ratification by the court, he takes the risk of losing his bargain if it should turn out that sufficient objections exist to its final confirmation. Order reversed and cause remanded. This case was argued and decided at December term 1855, and during that term a motion was made for a re-argument, upon the ground that the decision that the advertisement was defective in its description of the property, would have the effect to disturb many titles. In support of this 'motion many advertisements, describing property in a similar mode, were filed. This motion was argued by Mayer & Alexander for [242] the motion, and by Barroll & Hagner contra, and was overruled by the court at the present term.