Opinion
03-20-1891
FISKE v. WEIGEL et al.
Carroll Robbing, for the motion. Willard Voorheeg, contra.
On petition to set aside master's sale.
Carroll Robbing, for the motion.
Willard Voorheeg, contra.
BIRD, V. C. The premises in question were sold by Woodbridge Strong, one of the special masters of the court. The sale had been advertised and adjourned several times. The property was a city lot, located between a lot of the petitioner and a lot of the purchaser. The petitioner at the time of filing the bill for partition was owner of one-half, and at the time of the sale of three-fourths. Prior to the sale aneffort was made by the solicitor of the complainant, who represented his sister, (the two owning the remaining one-fourth, ) to effect a sale of the remaining one-fourth to the petitioner. He had paid $1,950 for the three-fourths which he owned, and offered for the remaining one-fourth $500, the costs of the suit in partition, and a small amount of taxes, which offer was not accepted. He refused to give more. Prior to the sale the petitioner called upon Waldron, the adjoining lot-owner, and gave him to understand that he wanted to buy the lot, and that, if he did, he would not build upon it so as to interfere with the light which Waldron enjoyed in his establishment. His effort undoubtedly was to prevent Waldron from bidding at the sale for the lot in question. Waldron said to him, if he would put his proposition in writing, he would consider it. The petitioner says that he expressed in writing what he intended to abide by in case he became the owner of the entire fee, as between him and Waldron, but that he never delivered it to Waldron. On the day that the sale took place the solicitor of the complainant met Waldron on the street, and called his attention to the fact that the sale was likely to take place that day, and spoke to him about buying the property. He said to the solicitor that he could not attend the sale, as he was going to leave the city: but he would make up his mind before he left, and would let him know what he would do. He afterwards called upon the solicitor, and authorized him to make one bid for him of $4,000. That same afternoon the property was offered for sale in the presence of the master, the solicitor of the complainant, and the defendant Weigel, who is the petitioner, and the petitioner's brother, who was acting as bis solicitor. After the conditions were read, the solicitor of the complainant bid $4,000. The master says he waited some time for other bids, during w, hkta time he solicited bids; but, receiving no bids, he said, "$4,000, once, $4,000, twice," and then turned to Weigel, and urged him to bid, but that he refused to do so, when he said," $4,000, three times, "and applied to the solicitor of the complainant for the name of the person to whom he should strike it off, and he gave the name of Waldron, to whom he struck off the property. The petitioner asks to set this sale aside on the ground of mistake and of inadequacy of price. He now says the property is worth $5,000 at least, and that he will give that for it. The mistake which he rests upon consists in nothing more than the belief in his own mind that the solicitor was playing the part of a puffer, with the view of "running the property up on me." This is all there is in the allegation respecting mistake. He did not even ask the solicitor for whom he was bidding; nor did he ask him if the bid was a genuine bid. There is no pretense that the solicitor had not the right to bid for his client, or for a stranger to the proceedings. Nor is there any pretense that anything else was said or done that had the slightest tendency to mislead the petitioner. Indeed, he was assured that if he only bid one dollar more he would get the property. Certainly this cannot be denominated such a mistake as either law or equity takes cognizance of. It was, at best, a mere delusion, and had nothing whatever to rest upon but the petitioner's misconception of plain, straightforward, legitimate, and honorable conduct of those in whose presence he was standing, and who were dealing with his rights of property according to law. While the law most jealously protects innocent parties against mistakes, it must be made to appear that the alleged mistake is not only a material, but a genuine, one. I believe two persons were produced by the petitioner who swore that they valued the property at $5,000, and that they would give that for it now. These persons were well acquainted with the property. They knew it was in the market for sale; but they give no sufficient reason for not attending the sale, unless it be that they knew the petitioner wanted it, and he requested them not to appear and bid against him. This, I think, is a fair inference from the testimony. Under such circumstances, their testimony ought not to influence the court. If such considerations were to be entertained, judicial sales would very frequently be frustrated at the bidding of the artful-minded; and, after what has been said above respecting the conduct of the petitioner, his present offer to give more ought not to be listened to. Besides this, the testimony of most credible witnesses establishes the fact that the property brought a very high price. It is clear its fair market value was not beyond $3,500. Indeed, I feel it my duty to say that the conduct of the petitioner prior to and at the time of the sale makes this very apparent; for when, in all probability, he could have purchased the property for $3,000 or less, he positively refused to entertain the proposition. I will advise that the petition be dismissed, with costs.