Parker v. Pratt

8 N.J. Eq. 104

• Court: New Jersey Court of Chancery
• Decided: December 15, 1849
• Status: Published

Opinion

The Chancellor.

I am satisfied from the testimony that the crier, before the hammer was struck, received a sign which was intended as a bid, and which the crier understood as a bid, and would have received as a bid at any previous stage of the bidding, but which he refused to receive as a bid, on the ground that the half hour, expiring at quarter past 3, to which, by the instruction of the Sheriff, he had limited the time for bidding, had expired.

This was a mistake in the crier. He was not at liberty to refuse a bid made at any time before the hammer was struck, though the half hour had expired. And if the Sheriff supposed he had a right to fix a point of time, prior to 5 o’clock, at which the hammer should fall and close the sale without respect to the state of the bidding at the time, he mistook the law.

As well might the Sheriff say, that the striking of the hammer of a clock at a given hour should close the biddings, and that ho whoso bid should happen to be made the instant before should be the purchaser, though a higher bid should be made the next instant.

A sale made by a crier under such instructions, if a bid made before the crier’s hand or hammer was struck be refused merely because the last second of the half hour had expired, is an illegal sale .It would bo exceedingly dangerous to allow to Sheriffs the right or power which the Sheriff in this case seems to have supposed he had, and which he, through his crier, exercised.

The bids, towards the close of the sale, were made with unusual rapidity. From the statement of Mr. Hagaman, a witness sworn on the part of the person to whom the property was struck off, there were 24 bids in less than 30 seconds ; his statement gives 24 bids in 20 seconds. But if there were 24 bids in a minute, or even in five minutes, continuing, as in this case, up to the very last moment of the half hour, it is extraordinary that the crier, or the Sheriff, should think he was justifiable in refusing the last hid, though made before the hammer was down, simply because the last moment of the half hour had expired.

I think there can be but little doubt, judging from what the property was bid to, and from the testimony before me, that the property will bring, at any fair Sheriff’s sale, enough to satisfy the incumbrances which are prior to the incumbrance of the petitioner. His claim is $1,691 19. The sum at which the property was struck off would have satisfied about $700 of his claim, after satisfying the prior incumbrances. The purchaser, or person to -whom the property was struck off, is the only person opposing the motion to sot aside the salo; neither the complainant in the execution nor the defendant in the execution opposes it.

Under these circumstances, I am relieved from any apprehension as to the consequences of setting aside this sale. It is, perhaps, as favorable a case as could well occur, in which to express the views of the Court as to the right which the Sheriff to whom the execution in this case issued supposed he possessed.

Sale set aside.