Opinion
03-22-1892
HOBBS v. LIPPINCOTT.
R. S. Gaskill, for the motion. Walter A. Barrows, opposed.
(Syllabus by the Court.)
Bill by Mary Hobbs against Joseph R. Lippincott to foreclose a mortgage on land. Decree of foreclosure. On motion to set aside sheriff's report of sale. Motion granted.
R. S. Gaskill, for the motion.
Walter A. Barrows, opposed.
BIRD, V. C. Nothing remains to be considered in this case but the liability for costs. The complainant filed his bill to foreclose a mortgage on the premises, which was covered by a second mortgage. After the final decree, and the execution issued thereon, which was placed in the hands of the sheriff, the amount if principal and interest due the complainant was paid, leaving the costs and the entire amount due the second mortgagee unpaid. The property was advertised for sale by the sheriff, and one adjournment was made by him. Before the time fixed for the sale according to such adjournment, the mortgagor and the second mortgagee entered into an agreement in and by which the title to the property was transferred, and the second mortgagee satisfied. The counsel who makes this motion was present at such an agreement, and had full knowledge of what had taken place between the parties. On the day of sale, but before such sale had taken place, such counsel informed the sheriff and the solicitor of the complainant of such agreement, and produced the amount of costs, including the sheriff's fees and commissions as in case no sale is made. The sheriff and the solicitor of the complainant were both present in the same room at the time these offers were made known to them. Mr. Gaskill says that he not only produced the money, but tendered it to the sheriff, and that the sheriff refused to accept it. The sheriff and Mr. Barrows both deny that any tender was made. The sheriff admits that Mr. Gaskill made the statements which he says he made, but that then he turned away from Mr. Gaskill, and went and sat down in another part of the room. This latter act on the part of the sheriff may reconcile the statement of Mr. Gaskill with respect to the tender. I have no doubt but that he produced the money. I am equally well satisfied that the sheriff did not see it; and yet the fact that he did not see it may not warrant the conclusion that Mr. Gaskill did not make a sufficient tender. It is evident that Mr. Gaskill was there upon this particular business, and that both the sheriff and Mr. Barrows understood it, and attended, in part at least, to what he had to say. The sheriff was not, then, justified in turning away from Mr. Gaikill, and closing his eyes to what might transpire. However, this may not be an essential part of the case. Notwithstanding this information to the sheriff and to Mr. Barrows, the solicitor of the complainant, the latter directed the sheriff to proceed to make the sale, saying that the mortgagee, who had now become satisfied, and no longer had any interest in the decree, had instructed him to see that the property was bid up to the amount of her claim, and insisting that it was his duty to obey such instructions until they were countermanded. The property was offered for sale by the sheriff, and Mr. Barrows bid for the second mortgagee, and had the title struck off to her as purchaser. After such sale, but before the sheriff had made any report, the solicitor of the complainant, who had made the bid for the second mortgagee, was fully informed as to the agreement which had been made before the sale, and which had been communicatedto him by Mr. Gaskill; so that there was no longer any room for doubt as to the right of Mr. Gaskill to insist upon the claim that no sale should be made, and that the sheriff and the solicitor of the complainant were only entitled to the moneys which he had produced as aforesaid. Yet, with all these undisputed facts and conditions, the solicitor of the complainant insisted that the demand of the sheriff for commissions upon over $1,800— the amount due the second mortgagee— was just, and that he was entitled to them under the law; and that, if they were not paid, he should direct the sheriff to make report of sale. Such commissions were not paid, and the sheriff made his report, which the petitioner now asks shall be set aside. The counsel resisting this motion evidently does so because of the costs involved. There is no pretense that the sheriff's sale should stand. If the sheriff's sale must go, what is there to prevent costs following? In the first place, both the sheriff and the solicitor of the complainant were put upon their guard before the property was offered for sale. A counsellor at law informed them that an arrangement had been made and carried into effect in and by which the second mortgagee in the decree was wholly satisfied. They were bound to heed this information to the extent of making inquiry as to its truthfulness. Without doing so they unquestionably acted at their peril. But if there were anything whatever in the case to excuse the counsel of the complainant from ordering a sale because of want of proper information respecting the said agreement, there is no doubt—indeed, it is admitted by the said solicitor—that he had the fullest information upon this subject before he directed the report of sale to be made by the sheriff. His only reason for insisting upon the report being made was, as has been intimated, the refusal upon the part of the second mortgagee to pay the sheriff's commissions, the same as in case of sales actually made. I think the fault in this case was with the solicitor of the complainant. The sheriff had no right to commissions as in case of sales. There was nothing to justify him in making the report of sale. The petitioner is therefore entitled to costs on this motion, and to retain the same out of the fees and costs in his hands, due to the solicitor of the complainant, as taxed in the costs on the decree for sale.