Mallar v. Mallarian

Grant, J. Complainant foreclosed a mortgage executed by defendant to him. Decree was duly entered, and also a personal decree for any deficiency that might result upon the sale. The sale was made, the land bid in by the complainant for $300 (although he testified that he bid only $200), and, at the instance of the complainant, the sale confirmed. A few days after, he brought suits upon the decree for deficiency against defendant, and issued writs of garnishment. The return-of the garnishee showed an indebtedness of only $9.47. Defendant, within the time allowed by law, redeemed the sale. Complainant refused to receive the redemption money, and filed a peti [346] tion to set aside the sale for two reasons: (1) Because no notice of sale was posted as required by law; (2) because the sale was not made by any one authorized by the decree. We deem it unnecessary to determine whether either of the objections is valid. The entire proceedings were conducted under the direction of the complainant and his solicitor, who was not Mr. Speed, the solicitor of record in this court. Complainant testified that the land was worth $700. 5 According to the return of the officer, the land was sold to the complainant for $300. According to the complainant’s testimony upon the hearing of this petition, he bid only $200. The defendant treated the sale as valid, and redeemed therefrom, as the law authorized him to do, and immediately sold and deeded the land to his brother. Complainant, in my judgment, cannot now be permitted to assert the invalidity of his sale from which he has received all that the law gives him. Had he bid off the land at something near its fair value, and the defendant had redeemed, complainant would have been satisfied. It is urged that it is unfair in the defendant being allowed to redeem from this sale and immediately sell the land, thereby preventing the decree for the deficiency to be realized therefrom by execution. Complainant deliberately sought to obtain more by his conduct than he was entitled to, for he bid in the property at less than one-half its value, and intended, from his testimony, to bid it in for less than one-third its value, and to recover the residue from the defendant on the personal decree. The conduct of one is no more commendable in morals than is the conduct of the other. If the defendant is solvent, the. complainant can realize from his sale what he intended to. If he is not now and never shall become solvent, complainant must lose it. In either event he has deliberately chosen his remedy, and will not now be heard to say that he was ignorant of the law in not knowing that the defendant had the right to redeem. I think the decree should be affirmed, with costs. [347] Moore, C. J., and Carpenter and Montgomery, JJ., concurred with Grant, J.