Wright v. Bruschke

Mr. Justice Waterman delivered the opinion of the Court. It is insisted that an appeal in this case was prematurely taken, the court having reserved for further consideration the distribution of any surplus which might remain after paying to the minors the sum of $5,399.17, with interest, and also paying fees, costs, etc. The decree is final as to the right of appellant to a deed under his certificate of sale, and is also final as to the priority of appellant’s claim to the proceeds of the sale ordered. No freehold is involved in this controversy. The appeal was therefore neither premature nor improperly taken to this court. Appellant is not found to have been a party to any fraudulent practice by Gehr, or to the contract by him made, or to the engagement of Cameron. Hor does it appear that appellant had knowledge or notice of either such fraudulent practices by Gehr or of any contract made by him. or Cameron. It is urged that appellant is chargeable with notice of what Gehr and appellant’s son knew in respect to the issuing of the certificate of sale and the contracts for sale of the real property; it being said that they were appellant’s agents to purchase for him this certificate. It appears that Gehr sold to appellant the certificate of sale. Gehr was in no wise appellant’s agent in respect to this matter. Appellant’s son appears to have asked Gehr if he would not sell the certificate to appellant. It does not appear that appellant’s son, in any negotiation for, or business concerning, the sale of this certificate to appellant, learned anything concerning the fraudulent practices of Gehr, or concerning either of the contracts made respectively by him and Cameron. A principal is not chargeable with notice of all that his agent may have learned from his youth up. ' As a rule, a principal is chargeable only with knowledge of that which his agent learned in the course of his agency, not with what he learned in his private business, or as agent for some one other than the principal sought to be charged. Ewell’s Evans on Agency, 231, *164; McCormick v. Wheeler, Mellick & Co., 36 Ill. 114, 121; Herrington v. McCollum, 73 Ill. 476, 482; Campbell et al. v. Benjamin et al., 69 Ill. 244, 250. JSTor is appellant, by the mere purchase of the certificate, as held by the court below, chargeable “ with knowledge of- all facts and circumstances attending the sale of said premises, of the issuance to said Gehr of said master’s certificate of sale, and of its erroneous statements.” There is nothing to show that the master made erroneous statements in the certificate of sale by him issued to Gehr. The court below find “ that the report of the master in chancery stated the amount actually bid at said sale, the same being the highest open bid made to said master at said sale.” If the master made erroneous statements in the certificate of sale by him issued, he would be chargeable with loss occasioned thereby, rather than a holder of the certificate who had, in good faith, relied upon the matters and things stated therein. The guardian of the minors, instead of objecting to a confirmation of the master’s sale to Gehr, allowed the same to be confirmed and a certificate issued; thereafter taking from Gehr a contract to pay for the premises sold a sum which, together with his bid, would make the total sum of §10,000. The guardian knew that a certificate of sale would be issued to Gehr, reciting the amount of his bid, $4,918.43, and that the said Gehr, his representatives or assigns, would, unless the premises were redeemed according to law, “ be entitled to a deed thereof at the expiration of fifteen months from the sale;” and the guardian also knew that such certificate was by the statute made assignable. If, therefore, in consequence of the making of such certificate of sale, a loss has been occasioned, it is the guardian who should' bear the same, rather than one who acquired the certificate in full and honest reliance on the contents thereof. The appellee, Cameron, is not bound by the arrangement that at the master’s sale he would bid the property off at the sum of $10,000. While the agreement in this regard, doubtless, was in perfect good faith, it was one which the law does not permit to be made. A contract that the master should sell to Cameron for $10,000 would not have been valid, and for want of mutuality Ms promise to bid $10,000 can not be enforced. Appellant, in good faith, paid $4,918.43 for the master’s certificate of sale; all of this money was properly applied in satisfaction of the mortgage on said premises, which was a lien superior to the claim of the minors. The minors and their guardian, as such, have had the benefit of the money paid by appellant. By the decree of the court below the claim of the minors to what may be realized upon a re-sale of the premises, is made superior to that of appellant for the money by him paid, without the payment of which money the minors’ claim to this property would be subject to a foreclosure decree for nearly $5,000. Appellant purchased the certificate of sale,.relying not only upon the record of the court, but the records of the recorder’s office, in which such certificates are required to be recorded; and no change can be made in the certificate without a saving of appellant’s rights. Jackson et al. v. Spink, 59 Ill. 404-409; Church v. English, 81 Ill. 442; Gillett v. Booth, 95 Ill. 183-187. We do not mean to indicate that a master’s certificate of sale is assignable so as to vest in the assignee title superior to that of his assignor. This is a court of equity, and those who appeal to it must do equity. Even if the appellant were chargeable with notice of all that anybody connected with the transaction knew of all that is charged to have been wrongly done, yet in depriving him of his legal rights, a court of equity, the province of which is to do equity, not to inflict penalties for misconduct, will refuse to allow him the benefit of his certificate, only upon terms that whatever expense he has incurred therefor, which went to the benefit of the equitable owners, must be paid to him. Lord Hardwicke v. Vernon, 4 Ves. 411; Randall v. Errington, 10 Ves. 423; Hamilton v. Wright, 9 C. & F. 123; Atty. Gen’l v. Lord Dudley, Coop. 146; Pearson v. Benson, 28 Beav. 598; Ex parte Reynolds. 5 Ves. 707. When a cestui que trust objects to a purchase by a trustee, the trustee is not to be called to make up the difference between what he paid and what was the true or probable value at the time; the ordinary relief consists in ordering a re-sale upon such terms as shall fully secure to the trustee all that he has expended. Mason v. Marten, 4 Maryland 124; Hawley v. Cramer, 4 Cowen 719; Imboden v. Hunter, 23 Ark. 622; Davoue v. Fanning, 2 Johnson’s Ch. 252, 271; Scott et al. v. Freeman, 1 Sanford 148, 152; see, also, Bennett v. Star Mining Co., 119 Ill. 9. Appellant does not now ask to have a deed issued to him upon his certificate; he has expressed his willingness to have the same canceled, upon the payment to him of the amount paid by him therefor, and interest from the date of his payment. Appellant’s claim for this has precedence over all others. Hnlesssuch amount be paid to appellant within a short time to be fixed, the premises should be sold by the master for cash, without redemption. The decree of the Circuit Court is reversed and the cause remanded, with directions that unless the appellant be paid as before stated, that a decree be entered, directing a sale of the premises by the master, for cash without redemption, and out of the proceeds to pay, first, the expenses of the sale; second, the amount that the appellant should receive as before stated, and the residue to the guardian of said minors; and that at such sale the master receive no bid for an amount less than the sum to be paid appellant, together with the costs of such sale, including the master’s fees and commissions; and that if no bid equal to such amount shall be made, then George Mills Rogers, the master who gave the said certificate of sale to said Gehr, shall execute to the holder of said certificate of sale, a master’s deed in pursuance of the sale heretofore made, and the petition of the minors by their guardian, be dismissed. Reversed and remanded with directions.