Simon v. Simon

1 Miles 404

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: June 6, 1833
• Status: Published

Opinion

The opinion of the court

(Barnes, President; Coxe, J.; and Pet-tit, J.

was delivered by

BaRNes, President.

—This case comes upon a rule to shou cause why the sale by the sheriff, by order of court, under proceedings in partition, should not be set aside. There appears to have been, at the time of sale, some misapprehension by the parties interested in the property, respecting the bidding, and if the sale is confirmed, this misapprehension will have operated injuriously upon their interests.

Mere deficiency of price is not of itself a sufficient ground to set aside a sheriff’s sale under execution, when the proceedings have been regular ; but we have not extended this rule to sales made by order of court in cases of partition, and there are many reasons why we should not do it.

The purpose of sale is not to recover a debt, but to make equal partition, among all parties, of the fair value of a property which cannot otherwise be divided. After having declined to take the property at a valuation by the inquest, the plain tiff, in proceeding to make sale to obtain his share, should not have it in his power to sacrifice the interests of others. It may so happen that tire property is of great value, and the plaintiff’s share of inconsiderable amount; that tire defendants are minors, femes covert, residents abroad, having no actual notice of the proceedings ; and it would perhaps lead to mischievous consequences to establish a rule that inadequacy of price is not a ground to set aside a sale in partition.

In this case the parties interested were at the sale, by themselves or their agents; nevertheless/from untoward circumstances, the property was knocked down for much less than its value, and for less than they intended, at the time, to have bid. The believed value at public sale is 2000 dollars ; it was knocked down for 930 dollars ; its appraised value was much more than the latter sum.

This application to the court to set aside the sale is resisted by the purchaser, on the ground that the sale was fair, and he was the highest and best bidder. In partition a lair price is necessary to a fair sale, and it is a mistake to suppose that the bidder has a right to the property for less than its fair value. Tlte very purpose and object of the sale is to prevent a sacrifice of the property ; it is because it cannot be divided “ without prejudice to or spoiling the whole,” the sale is ordered. The defendants in partition owe the plaintiff no duty ; they are in no default in the premises ; and when their property has been knocked down for manifestly less than its value, and less than it would bring on a re-sale, their right to a re-sale cannot be resisted by the allegation that the bidder would thereby lose the benefit of a good bargain. The condition annexed to our order however is, that the party making this application pay to the purchaser interest on the amount of his bid for the time it has been in tire bands of the sheriff, which we understand is ready to be done. On this condition, we order the

Rule absolute.