Bertenshaw v. Moffitt

Stuart, J. Bill in chancery by Bertenshaw against Moffitt and others. The case discloses the following facts: In February, 1846, one Gallion had recovered a judgment against William Moffitt, jr., one of the defendants, in the Franklin Circuit Court, for 61 dollars. In May, 1846, William Moffitt, jr., being the owner of lots seven and eight, in the town of Brookville, mortgaged them to the complainant Bertenshaw, to secure the payment of 168 dollars. In August, 1846, the defendant Stoops recovered a judgment in the Franklin Circuit Court for 146 dollars against William Moffitt, jr., and John, Elijah and Wesley Moffitt. The lots in Brookville, worth from 350 to 400 dollars, were sold on the Stoops judgment for 11 dollars. Stoops himself became the purchaser. This purchase was of course subject to the two prior liens, viz., the Gallion judgment of 61 dollars and the Bertenshaw mortgage of 168 dollars; making the prior liens in all 229 dollars; the liens and the bid together 240 dollars. Thus far there is no difficulty. The price, compared with the value of the property, could not be considered inadequate, particularly in a judicial sale. Benton v. Shreeve, 4 Ind. R. 66. Afterwards Stoops purchased the Gallion judgment; again exposed the Brookville lots (seven and eight) for sale thereon; and became the purchaser at 20 dollars. Stoops transferred his last bid to Atwell Johnson, one of the defendants, who appears to have been fully cognizant of all the facts. Johnson paid Stoops 305 dollars for the substitution, and the sheriff made the deed to him accordingly as the substituted purchaser. It further appears that the lots were bid off at the latter sale by the attorney of Stoops. William Moffitt, jr., seems, to have interfered to prevent bidders from competing at the sale. The sheriff’s deposition discloses that fact, “ When,” says the sheriff, “ any one bid against Stoops' attorney, William Moffitt, jr., appeared dissatisfied, and said it was unnecessary to run it up, for the intention was [466] to redeem. But nothing was said about the redemption when the deed was delivered.” J. Byman, for the plaintiff. G. Holland, for the defendants. The majority of the Court regard the whole transaction in this light. Stoops’ first purchase was an effort to protect his own interest to the extent of the judgment he had recovered. That judgment was 146 dollars. His bid on the second sale is to be added, making the entire extent of Stoops’ interest 166 dollars. Under all the circumstances, the majority of the Court are reluctant to say that the price paid at the sale on the Gallion judgment is so grossly inadequate as of itself to import fraud; and that as Bertenshaw had constructive notice of the Gallion judgment at the time he took his mortgage, he should either have attended the sheriff’s sale or taken other proper steps to discharge that judgment, and thus protect his own junior incumbrance. Having failed to remove the prior lien as he might have done, he must abide the consequences of his own neglect. He is not entitled to relief. Per Curiam. The decree is affirmed with costs.