Opinion
05-18-1886
BROWN v. FARLY and others.
Gilbert Collins, for complainant. J. G. Shipman, for defendant Farly.
On motion to confirm sheriff's sale on decree of foreclosure.
Gilbert Collins, for complainant.
J. G. Shipman, for defendant Farly.
BIRD, V. C. I think it is my duty to advise against confirmation of this sale; yet I do it with no little hesitation. Although such a case is not before me, it seems quite clear that, if the purchaser were in all other respects a stranger to the proceedings, the sale ought to stand. But why should there be any distinction between Brown, the purchaser, who is the complainant, and a stranger? All the distinction that I am able to make is that he is complainant, and in equity is only entitled to the money for which he holds the land as security, and has satisfied me, from the testimony he has offered, that the land is still a good security, if not abundant, for the loan. It is true, upon a sale under his decree, he is entitled to the land if he be the highest bidder, and it appears that it sold for the highest cash price that could then be obtained for it. And this leads me to the turning-point in the case: I am not satisfied that the highest cash price, within the meaning of the statute, was obtained for the mortgaged premises; yet so near to that highest price as not to justify the court in withholding its sanction to the official act of the sheriff, in case a stranger was asking for confirmation. This distinction, I think, should not be disregarded, since it is of great consequence that judicial sales should be upheld as sacred where the price paid is at all reasonable, and the conduct of all the parties free from fraud. And this is what I have in mind when I say that I hesitate in advising against confirmation. The great importance of the principle that every fair sale (and "fair" includes every consideration) should be approved, applies with less force to a complainant who sells the security which he holds for his debt, and is the buyer. He still has his security if the sale is not sustained. He will not be discouraged from attending and bidding again, for his loan is at stake; whereas, if a stranger had been frustrated in his supposed honest efforts, by the court, he and others would likely consider all attempts vain or useless.
And yet, as between the complainant, as purchaser, and the defendant, there is no strong ground for the resistance offered to the confirmation sought for. The conduct of the sheriff is in no sense successfully assailed. He adjourned the sale for the two months allowed by the statute. The only points attempted to be made against him are that he did not adjourn again for one week, and that he sold the premises between 12 and 1 o'clock, instead of later in the afternoon. The solicitor of one of the defendants (who was a sister of Farly, the mortgagor) was present at the sale, and stated to the sheriff that he had expected his client there from the state of New York, and that he expected she would, if present, bid on the property. It seems she was not there because of sickness. There certainly was nothing in this to assure the sheriff that she wouldbe there at the end of a week, or that her bids would be above those actually made by her solicitor; and to this time there is no proof that she stands ready to make an offer of any large sum in advance of what has already been procured. It is simply declared that she has said she will give more. The sheriff had the same right to sell at the hour of half past 12 as at any other between 12 and 5, the statutory limits. Some proof was offered to show that the sheriff usually sells later in the day. This cannot avail in this case, because it does not appear that any one attended afterwards at the place of sale with the view of buying, and was disappointed.
Nor can I see any injury done to Farly by selling all the premises in the lump, or at one offer, because the sheriff was not commanded by his writ to sell in parcels, and also because Farly, being present, did not ask the sheriff to sell in parcels. Now he says it would have brought much more had it been offered in parcels. He should have endeavored to make it so appear to the officer before the sale; or, still better, he might have had the decree and writ fashioned to that end. But all this neglect is only equaled by his folly and blindness in declaring at the sale: "I give notice that whoever buys this property at this sale will buy a lawsuit." If the court did not prefer mercy rather than sacrifice, this would end all his appeals for aid; and especially so since the conduct of the complainant is not open to the slightest assault. The complainant was the highest bidder, and he became such in a perfectly legitimate and fair manner. Nor do I feel any strong conviction that, at another sale, there will be any higher bids. Of course, this is a confession of the weakness of the resistance to confirmation, and would seem to awaken the belief that the statute has been complied with.
The statute must be my guide. It provides that the sale shall not be confirmed unless the court is satisfied that the property sold for the highest and best price it would then bring in cash. What does this mean? Does it signify that if the officer obtains the highest and best price that he can upon a given day, that that must be the guide of the court, irrespective of all other conditions or circumstances? No. Every person interested may be free from blame, and yet the good sense of the statute be overridden. Storms which intercept travel, sickness, and other like events, may prevent competition, and end in great sacrifice, without the slightest imputation of blame against any one in charge or in interest. Hence, when the statute says that the court must be satisfied that the premises sold for the highest and best price it would then bring, it doubtless meant that the court could look beyond the limited range of the auctioneer's block. And in such a case as the one before me, where the lands mortgaged are large and most ample security for the claim, and the highest bid less by $500 than the amount of that claim, the court will be better satisfied that it has obeyed the dictates of the law by making another trial of values before the interested public. According to the testimony, at a fair valuation the mortgagor's interest is worth at least $5,000. It is put at $5,600 by a very good judge. The highest bid was $3,500. The amount required to satisfy the decree wasover $4,000. The complainant would have bid the whole amount of his claim had there been competition to lead him onward. He has also, or another has for him, a judgment, but it does not raise the claims of complainant to that sum which I am satisfied the premise;s ought to be sold for in cash.
I think there should be a resale. But, in order to that end, the defendant Farly must first pay the costs and expenses that were made in advertising and offering the premises at the sale which the court now refuses to confirm. I can see no reason for imposing these costs and expenses on any one else. The said costs must be paid within 10 days from the filing of these conclusions, so that the complainant be not delayed.