Wood v. Hennen

Ogden, J. The appearance and interference of Hennen&tthe sale of the property which the Sheriff was about to sell at the instance of Mrs. Wood, the intervenor, as well as of Buckley x& Holt, to satisfy their mortgage claims against Doten, and his representations at the sale in regard to the tacit mortgage on the property in favor of Durand's Wife, were unauthorised and calculated to defeat the rights which the plaintiff was seeking, by legal moans, to enforce on the property of her debtor. With whatever view it was done, the unauthorized action of the defendant had the effect of deterring other persons from purchasing, and the adjudication to him of the property, for the small sum of ten dollars and five cents, which cannot be considered a serious price, was properly set aside by the judgment of the court below. See Liles v. Rhodes, 7th L. R. 91. As the defendant, Alfred Hennen, does not claim in his answer that his title should be maintained, it is unnecessary to review all the evidence which was adduced on the trial, to establish a fraudulent combination between [265] him and Durand and Wife, to prevent the property from being sold for a fair price. The only question is whether he can be rendered liable for the debt which the plaintiff was seeking to enforce, on the ground that by his wrongful act, the plaintiff was prevented from reaping any benefit from the seizure of the property of her debtor. The plaintiff has asked an amendment of the judgment of the court below to that effect. Such a demand is inconsistent with the demand to set aside the sale. The plaintiff ought to have made her election as to which remedy she would pursue and having obtained a judgment on her prayer to that effect, annulling the sale, she can no longer seek a relief inconsistent with that which has been granted to him. Mrs". Durand having been made a defendant in the suit, claims in her answer, that the mortgage declared by her husband in the sale to Doten, to exist in her favor for §4000 should be enforced on the property. She has given no evidence to establish any claim against her husband, except his acknowledgment which can confer no right in her favor against the creditors. We do not think that any of the irregularities which it is alleged, existed, in the prosecution of the order of seizure and sale, can be urged as matters of defence in this suit. Doten, against whom those proceedings were conducted might set up such defects, but the defendants in this suit cannot. An amicable demand was not necessary, as the object of the suit was to set aside a sale which had been improperly made in the course of judicial proceedings, duly and regularly commenced. If it had been a case where an amicable demand was necessary, the only costs from which the defendant could be relieved would be those incurred previous to filing his answer. The judgment of the court below, we think, ought not to be disturbed and it is affirmed with costs.