BIRD, V. C.
Action by the Workingmen's Mutual Building Loan Association against Ann McGillick and others to foreclose a mortgage, in which there was judgment for plaintiff, and a sale of the mortgaged premises on execution. Part of defendants moved to set such sale aside. Motion granted.
Allen H. Strong, for the motion.
Van Cleef, Daly & Woodbridge, opposed.
BIRD, V. C. Courts, in disposing of questions arising upon judicial sales, have two objects in view, namely, to give character and integrity to judicial sales in the public mind, and also to secure the highest and best price for the property sold. On the one hand, this justifies bidders in feeling assured that their claims will not be trifled with, and also protects the property offered for sale from being sacrificed. Sound public policy involves these two conditions. With this in mind, I have come to the conclusion that the objections to the sheriff's sale in the case in hand were well taken. It appears that Mr. Weigle represented the complainant, and Mr. Allen H. Strong represented four of the defendants, and Messrs. Van Cleef, Daly & Woodbridge represented another interest. The property was first advertised for sale by the sheriff on the 23d day of August last, and was adjourned from week to week, at the request of the last-named counselors, inthe interests of the persons to whom the property was struck off, till the 22d day of November following. Mr. Strong was present at the place at which the property was to be offered for sale on the first day named, and was in attendance upon every day to which the sale was adjourned, until the last-named day, when the property was offered for sale, and struck off to Meyer. Mr. Strong was interested in behalf of his clients, who owned about three-fourths in interest of the fee. He intended to be present when the property was offered for sale. On the evening before the sale he met Mr. Weigle, the solicitor of the complainants, and informed him that he intended to be present the next day, and to bid on the property. The usual time for making sales by the sheriff had been 2 o'clock. Mr. Strong was unexpectedly detained with business in his office, and 2 o'clock arrived and passed without his noting the time until nearly or about half past 2, when Mr. Weigle informed him that the sale had taken place. The sale was for $930, being less than $4 above the amount of the decree and all costs. It is claimed, upon the part of the objectors to the confirmation of this sale, that the property is worth about $2,000, and this claim has not been disputed. That Mr. Strong intended to be present, and to bid, in the interests of his clients, beyond the amount for which the property was struck off, is perfectly clear. It is also perfectly clear that the property was struck off to Meyer for very much less than its real value, even at a sheriff's sale. It is not disputed that the purchaser attended the sale and made his bid in the behalf of one who claims, directly or indirectly, an interest in the land. I have said that Mr. Strong intended to be present at the sale, and to bid for the property in behalf of his clients. They had employed him for this purpose, and undoubtedly relied upon him as they had a right to. His insistment is that the sale was a surprise to him, and certainly it was to his clients. He therefore insists that his clients ought to be relieved therefrom by refusing to confirm the sale.
The question, therefore, is whether or not, under the circumstances, considering the surprise, the inadequacy of the price, and the fact that the purchaser did not buy in his own interests nor for a stranger, the objections to confirmation ought to prevail. The surprise, I think, was complete. It cannot be said that there was any negligence or inadvertence, when regard is had to the trust most clearly arising from the accommodations afforded to each other by the respective counsel in this case. Counsel had a right to expect that no sale would take place so hastily without his first being informed that it was about to take place. The complainant's counsel knew that Mr. Strong had been in attendance at least 12 times, once each week during that number of weeks, with the view of purchasing the property, and had informed him particularly, the night before the sale, that he expected to be present and to bid. This view is enforced by the fact that neither the counsel of the complainant nor the counsel of the purchaser were present at the hour named for the sale, nor did either of them appear until they were sent for. It appears that the purchaser wanted to return to New York, his place of business, by the 2:17 train from New Brunswick, and urged that the sale might take place that he might do so; but when he procured the attendance of his counsel it was too late for that purpose, and, when the presence of the counsel of the complainant was had, it was at least 2 o'clock and 20 minutes. In the mean time his counsel told him that he could not leave New Brunswick for New York until 3:10, but that he could buy the property, and would have time enough to examine it, after buying it, before the train left. Counsel for complainant says that just as soon as he entered the sheriff's office the sheriff commenced reading the conditions of sale, and, after reading them, offered the property for sale immediately, and that, upon the single bid being made by Meyer, the property was struck off to him. He then went to Mr. Strong's office, (he says it was not yet half past 2,) and informed him of the sale, and Mr. Strong immediately sought out Mr. Meyer with the view of having the property again offered for sale, but the latter refused, and insisted upon the benefit of his bid.
The inadequacy of the price is also quite influential. The purchaser not being a stranger, in the sense in which that phrase is used in such proceedings, I think it would be a great infringement of the rule above stated to deprive the objectors to the confirmation of this sale of so large a portion of this land, or of its value, under the circumstances, and to give it to the real purchaser. It seems to me that the law which provides that it shall appear that every sale made by a judicial officer is made for the highest and best price that can be procured at the time for the same, when properly understood, meets this case, and protects these objectors. While, technically speaking, the sheriff may have performed his duty, yet, when the court comes to take all of the facts into account, it established, beyond any dispute, that the property did not sell for the highest and best price that could then be obtained for it. I do not mean to insist that the sheriff had any other duty to perform, but it is very plain to my mind that those who knew the interests of Mr. Strong in the case had a duty to perform if the sheriff had not. They knew perfectly well that, if Mr. Strong were present, the property would sell for a higher and a better price, or, if they did not have such knowledge as led to a conviction, it seems to me they had every reason for believing that he intended to bid more for the property. The cases which I have consulted I think sustain the views above expressed. Seaman v.Riggins, 2 N. J. Eq. 214; Wetzlcr v. Sehaumann, 24 N. J. Eq. CO; Bank v. Sprague, 21 N. J. Eq. 458, Hayes v. Stiger, 29 N. J. Eq. 196; Brown v. Elliott, 17 N. J. Eq. 353. Upon the payment of the costs of sale and of this motion by the objectors, a resale will be ordered. I will so advise.