Boehlert v. McBride

Currier, Judge, delivered the opinion of the court. This is a proceeding in equity, brought to set aside a sale under a deed of trust. The sale sought to be set aside was made on the 2d day of February, 1863. It appears that the trustee died prior to the sale, and that the sale was made by the defendant as sheriff of Perry county. The petition charges that the sale was fraudulent ; that the defendant purchased the property at his own sale, in the name of a third party, at a depreciated price; that he discouraged bidding; and that the sale was made by the sheriff, when it ought to have been made by the legal representatives of the deceased trustee. It is averred in the petition that the provision in the deed of trust was that upon default of payment the sale should be made by the “ trustee or his legal representatives, or, in case of death or absence from the State, by the sheriff.” The answer alleges that the provision on this subject was that the sale should be made by the sheriff in case of the death or absence of the trustee, making no mention of his legal representatives. So far as these two statements are in conflict, the latter must be regarded as a contradiction of the former, leaving the point of difference to be determined by the evidence. At the trial the plaintiffs read in evidence the sheriff’s deed executed in pursuance of the sale, and that recited the provision in the deed of trust in regard to a sale by the sheriff in accordance with the allegations of the defendant’s answer; and that was all the evidence there was in regard to the matter. The deed of trust itself was not put in evidence by either party, so that we [507] are left in tbe dark as to its exact provisions, and must accept tbe recitals of tbe sheriff’s deed as stating tbe clause in question truly., The evidence of fraud in tbe sale, or of improper conduct on tbe part of tbe defendant, is slight and unsatisfactory. One witness testified that be forbore bidding because be regarded himself as disqualified from bidding, and that be acted upon tbe idea that bis bid would not be received.; but there was no evidence that this opinion was induced by tbe statements or acts of tbe defendant. Tbe property sold for $186, which tbe plaintiffs claim was less than half its real value. There is nothing particularly remarkable in that when we consider that the- sale was made in 1863, in tbe midst of tbe war. A few days after tbe sale tbe purchaser conveyed tbe property back to tbe defendant. His deed was read in evidence, and tbe deed shows a consideration of $186, tbe .same price at which tbe property was bid in at the public sale. These are significant circumstances, but they are not sufficient of themselves, standing alone as they do, to fix on the defendant tbe charge of having speculated at tbe sale in violation of bis duty as a trustee. In order to fix that charge upon him there should have been something more — something pointing to an understanding between him and the bidder at or prior to tbe sale. There was nothing wrong in a purchase subsequent to tbe sale, unless tbe subsequent act was tbe result of what bad previously taken place. Tbe recitals in the sheriff’s deed show a sale in conformity with tbe provisions of tbe deed of trust, so far as we are made acquainted with those provisions, and there was no evidence in contradiction of them. They must therefore stand. . After a careful examination of all tbe evidence in tbe case, putting out of view that offered by tbe defendant, and received against tbe plaintiffs’ objections, I am constrained to adopt the conclusion that tbe judgment of tbe court below was warranted, and that it ought to be affirmed. Tbe other judges concur.