Watson v. Lynch

Grant, J. (after stating the facts). Several objections are raised to the validity of the sale, one of which is valid, and entitles complainant to relief. The sale was advertised to be made by the mortgagee, and not by the sheriff. Mr. Phelps, as sheriff, had received no authority or instruction from complainant or her attorney to make the sale. Complainant had written a letter to him, not as sheriff; but this letter, while received before the sale, remained in his desk unopened until several days afterwards. In this letter she said: ‘ ‘ Various estimates of the property have been given me. You will undoubtedly know very nearly the exact value, and I make the request that you bid off the land for me, and oblige.” If he had received this letter and read it, it would not have authorized him to make the sale that [368] he did. Under its authority it would have been his duty to attend the sale and bid the property in for complainant, or procure some one else to bid for her to the amount of her mortgage, if the land was worth that much. It needs no argument to show that the sheriff may not watch the newspapers to see what sales are advertised in foreclosure cases, and then assume the authority to appear and make the sale without any instruction from the mortgagee, unless the notice is such as to show the authority conferred upon him. The mere fact that the statute authorizes such a sale to be made by the sheriff does not confer upon him any such authority as is claimed in this case. The mortgagor may have paid between the last day of the publication of tho notice and the day of sale, or he may have paid before, without the withdrawal of the notice from publication. The sheriff has no right to assume such authority, and the purchaser has no right to assume that the sheriff has been authorized by the mortgagee to make the sale. It is not a case where the purchaser can be protected as a bona fide one, or the mortgagee can be estopped to deny the authority to sell. The. decree is affirmed, with costs. The other Justices concurred.