Slack v. Cooper

Mr Justice Freeman delivered the opinion of the court. Plaintiff in error contends that the acceptance of his bid by the master made a binding contract enforcible both, against and in favor of the bidder. It distinctly appears in this case that the master’s acceptance of the bid for $3,000 was under a misapprehension, he supposing that plaintiff in error represented the complainant and that no other bidders would attend the sale. He states that he felt he had through this misapprehension “Sold out the complainant to the satisfaction of the defendant.” It appears that at the subsequent sale made with full notice to plaintiff in error, the premises were actually bid off for $7,000. There need be no time lost, therefore, in considering the adequacy of the bid made by plaintiff in error or the value of the premises. It is enough that within less than half an hour after the alleged sale to plaintiff in error upon full notice to him of the resale, the premises brought two and a third times the amount of his bid. It is evident, therefore, that a grave injustice would be done the complainant, at least, if plaintiff in error should succeed in securing the mortgaged premises for which others were willing to pay $7,000, by paying only $3,000 to apply on a-decree for $8,197 exclusive of the costs and solicitor’s fees which the decree included. Upon hearing the intervening petition filed'by plaintiff in error asking that the sale alleged to have been made to him for $3,000 upon .his bid be approved and affirmed, the chancellor found that by the decree the sale was ordered to be made for cash, that by reason of the master’s misapprehension and mistake all the parties interested did not have an equal and sufficient opportunity to bid thereon, that if the sale had been made in such manner as to give all proper bidders an opportunity to bid, the premises would have brought $7,000, and that it was for the benefit of that one of the defendants against whom a deficiency decree might be rendered, as well as of complainant, that both the alleged sales be disapproved, and a sale made such as the decree provided for. It is apparent that the sale to plaintiff in error was not made for cash. Ho offer of deposit or payment was. made until after the master had made the resale. In Dills v. Jasper, 33 Ill., 263-272, it is said that if the order upon which the master acts “contains special directions in regard to requiring a deposit, they should be followed.” The decree in this case does not contain any such special provisions. It appears, however, that it directed the sale to be made at public auction for cash, and in the absence of any special directions as to the manner of payment, a sale can scarcely be said to have been made for cash, when a bidder after making a bid which is accepted, goes off without making or offering to make any payment whatever or any arrangement for payment* When the bid is- made by the complainant in the foreclosure proceeding and the amount bid does not exceed what is due the complainant under the decree, the requirement that the sale shall be for cash is satisfied to the same extent as if paid in money when the amount is credited on the decree, and the complainant need not pay his bid in cash. Sage v. Central R. Co., 99 U. S., 334-339; Reinhardt v. Seaman, 208 Ill., 448-454; Koerner v. Gauss, 57 Ill.App., 668-671. Rot so, however, when, as in the case at bar, the bidder is not a judgment creditor but an outsider, bidding for himself. It is said in Dills v. Jasper, supra, that “a bid with or without a deposit, although it is accepted by the master, does not become an* absolute contract until" it is approved by the court.” The bid of plaintiff in erfor has not been so approved and may be regarded in this case as a mere agreement by plaintiff in error “to purchase the property upon the terms named if the same are approved by the court.” In the case last cited it is further said that “the master may reject the bid and may again expose the property for sale” if the amount of the bid is not deposited with him at the time of its acceptance or immediately thereafter. In the case at bar there is nothing to indicate that the master intended to waive the requirement of cash payment except as to the complainant, and nothing to indicate that he intended to or did waive the requirement as to plaintiff in error. It was not complied with and the master had a right to reject the bid and again expose the premises for sale, as he did upon actual notice to plaintiff in error, who even then made no effort at compliance until after the resale. It is apparent that there were irregularities in the conduct of the sale, which-in our judgment amply justified the action of the chancellor in setting aside and refusing to approve hoth sales, that to plaintiff in error and the subsequent sale to complainant, as w"as done. Hot only was the bid of plaintiff ip. error inadequate as to price, but it was accepted by the master under a misapprehension as to the purchaser’s identity without which such a bid would not apparently have been accepted. Ho cash accompanied the hid and no arrangement for paying it as the decree required was made. Plaintiff in error was not a stranger to the litigation and could not but be aware that he was taking advantage of the non-arrival of complainant’s counsel, and that the master was either acting under some misapprehension or else was not dealing fairly with complainant nor with that one of the defendants who would be liable under a deficiency decree. “Although gross inadequacy of price alone will not be sufficient to avoid a sale under judicial process^ yet it will when combined with irregularity in making the sale.or even slight circumstances indicating unfairness or fraud, furnish sufficient ground for equitable interposition.” Smith v. Huntoon, 134 Ill., 24-30; Miller v. McAlister, 197 Ill., 72-78; Quigley v. Breckenridge, 180 Ill., 627-631. We are of opinion that in disapproving and setting aside both sales, the chancellor exercised a sound discretion. Plaintiff in error was not a stranger to the order of sale, and it would be inequitable to allow the premises to be sold to him under the circumstances disclosed by this record for the amount of his bid. In Quigley v. Breckenridge, supra, it is said that a decision approving or disapproving a master’s report of sale may be assigned for error. For the reasons indicated the decree of the Circuit Court complained of is affirmed. Affirmed.