Brady v. Carteret Realty Co.

[642] The opinion of ihe court was delivered by Fort, J. This is an appeal from an order of the court of chancery awarding an injunction, pendente Hie, in accordance with the prayer of the hill. The hill is filed under the statute to quiet titles. 3 Gen. Stat. p. 3486. With the order awarding the injunction we agree, hut we think the reasons given therefor by the vice-chancellor are in some respects erroneous. ’The case was heard on the bill and affidavits, no answer or answering affidavits being filed. The defendant purchased of the executor of Zabriskie a judgment against the complainant, which it was seeking; to enforce by execution, through a sale by the sheriff of Middlesex county, and at the same time giving out at such sale, or threatening to so do, that the judgment debtor had no interest in the land being sold. On this point the allegation of the bill is: “That at the time and place at which said sale was advertised, Edward S. Savage, an attorney-at-law of the state, who is a director of said Carteret Realty Company, and the attorney acting- for said company in selling said lands under said execution, although his name does not appear as attorney of record, stated to the sheriff and those present, in opposing an adjournment, that your orator had no title to said tract of land, and was not the owner thereof, and that an adjournment should not be granted because his interest in said tract by possession was not worth anything, and that the said Edward S. Savage has stated the same thing to other persons, and has stated it in a letter written to said sheriff, and lias also stated to your orator that he intends to give notice- of the same thing on the day of sale of said lands under said execution.” The affidavit's to the said hill support this allegation, and, among other things, say that, at an interview with the complainant, Savage, the agent and attornoj^- of the defendant, said: “That he intended, on the clay to which the sale of said tract had been adjourned, to again announce that deponent had no title whatever to said tract and did not own it, but was a mere tenant, and that the Carteret Realty Company was the true owner of said tract.” [643] And by another affidavit, it is further stated that “deponent heard Kdward S. Savage state to the sheriff and those present in opposing the granting of an adjournment that said Brady had not title to the lands advertised for sale, and was not the owner thereof, and that the interest of said Brady in said lands was only by possession and was not worth anything, and that the Carteret Realty Company was the true owner of said lands.” And it is further sworn that at an interview with said Savage, held after the adjournment of the sale, on the first advertised day, he said that “he intended, on the day to which the sale of said tract had been adjourned, to again announce that deponent had no title whatever to said tract and did not own it, but,was a mere tenant, and to state that the Carteret Realty Company was the true owner thereof.” Savage was a director of the defendant company and was acting for it. Statements such as those in the bill and affidavits are more than a mere recital of an alleged claim, of the defendant; they amount to an expression of opinion as to the title of the judgment debtor, and an affirmance that he is without any legal right whatever. At a judicial sale the rule of caveat empior applies, and the purchaser buys only such estate or interest as the debtor has. Boorum v. Tucker, 51 N. J. Eq. (6 Dick.) 135; S. C., 52 N. J. Eq. (7 Dick.) 587; Campbell v. Parker, 59 N. J. Eq. (14 Dick.) 342; Snell Eq. 389. The vice-chancellor, in the opinion below, on this point, states the true legal rule, when he says: “The sheriffs deed passes the same title which a deed of bargain and sale executed by the judgment debtor would pass.” 3 Gen. Stat. p. 2080 § 7; Laws of 1799 p. 486 § 12 (Pat. L. p. 371); 1 Nevill p. 280 § 6; Hackensack Savings Bank v. Morse, 46 N. J. Eq. (1 Dick.) 161; 47 N. J. Eq. (2 Dick.). 279; Voorhis v. Westervelt, 43 N. J. Eq. (16 Stew.) 646; Den v. Winans, 14 N. J. Law (2 Gr.) 1. It is undoubtedly within the right of’ a person claiming to have an interest in the land being sold at a judicial sale, whether [644] such person be the judgment creditor or otherwise, to- state any facts as to the property aborzt to be sold, when such facts relate to the title, possession or the alleged right of possession thereof. Such statements can in no sense be deemed inequitable or oppressive, or as a slander of the title, 25 Am. & Eng. Encycl. L. 788. But it is not essential to a preservation of the rights of a judgment creditor, or other person in interest in the lands of the judgment debtor being sold, that he shall state facts within his knowledge relative to the title or possession of such land at such judicial sale. His failure to do 'so will not work an estoppel of any rights or remedies which such judgment creditor or other person in interest has in such lands. Judicial sales fire involuntary sales. The officer of the law is the agent of the debtor in effecting the same. Ho does not estop the judgment creditor by his conveyance. Den v. Winans, supra. The equitable rule, so general and so salutary, which declares “that where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent," as applied to the sale of lands, will be found in all the cases to have been so applied in cases of conveyances inter paries, and in no case to have been so extended as to embrace a judicial sale — a sale in inviium. But we think that an entirely different rule applies from the one just stated, when a judgment creditor or other party in interest in the land sold not only stands by or states facts, but expressed an opinion as to the title which injures and prejudices the sale of the interest which the debtor has or which will pass under the conveyance by the sheriff or other officer. To state facts cannot injure; to express an opinion upon the facts, or without stating the facts, may 'be oppressive and prejudicial. It is certainly inequitable. In the case sub judice, Mr. Savage did not content himself,' as the representative of the judgment creditor, with merely standing by or with a statement of the facts, but he said, in effect: “It is my opinion, now given for the benefit of all purchasers at this sale, that tire defendant has no title-. He is a [645] mere squatter. A. purchaser will take nothing by the sale. The judgment debtor’s interest is not worth anything. The Carteret Eealty Company is the true owner.” To permit a judgment creditor to so conduct a sale under his execution is to peimit him to defeat the right of the judgment debtor to sell, at a judicial sale, whatever will pass under the conveyance to the purchaser, and thereby secure thereat what an unalarmed purchaser may be willing to pay. A judgment creditor will not be permitted to assume to sell real estate and declare, as a conclusion of law or as an expréssion of opinion upon facts, that nothing will pass by any conveyance which may be made by the sheriff to the purchaser at the sale. Whether anything passes by a sale and conveyance of real estate at a judicial sale is a matter in which only the debtor and purchaser are concerned, and they must be allowed to determine that question for themselves from the records or from facts otherwise stated or ascertained. . The defendant, while using the process of a court of law to collect its debt, has availed itself of that occasion to start a question of title to cheapen what it proposes to sell; it, therefore, is inequitable that the legal process be pursued until such question be set at rest, the complainant having tendered by its bill a prompt opportunity to that end. • The defendant should bo restrained from making the saie until the case made by the complainant’s bill, as to the question of title, is determined. For these reasons, the decree of the court of chancery should be affirmed. For affirmance — Tiie Chief-Justice, Dixon, Garrison, Fort, Pitney, Swayze, Bogert, Yredenburgi-i, Yroom, Green, Gray — 11. For reversal — None.