Slocum v. Glass

3 How. Pr. 178

• Court: New York Supreme Court
• Decided: September 15, 1847
• Status: Published

Opinion

Harris, Justice.

It is unnecessary to examine the obj ections taken to the regularity of the proceedings previous to the sale. Though those proceedings may have been perfectly regular, it is impossible to sustain this sale upon any principle which a court of equity has ever applied, in similar cases. If we look to the price for which the property was •sold, it is so inconsiderable, compared with its acknowledged value, that i a common sense of justice would exclaim against allowing the purcha-1 ser to take advantage of such sale. If we look to its effect upon the! mortgagor and those who, as creditors, must share in his losses, sound ' policy seems to demand that they should be protected against so need less a sacrifice. If we regard the interest of him who stands in the place of the mortgagee, we see that by sustaining this sale, he is, without any apparent fault or negligence on his part, to be deprived of all security for the remaining instalment upon his mortgage. If we regard the circumstances of the case, we do not find that gross negligence, nor that absolute inability to prevent a sale, on the part of the mortgagor, which, in some cases of extreme hardship, have rendered it impossible to grant relief upon any recognised principle of equity. So far from being chargeable with negligence, we find the mortgagor exercising great vigilance in his efforts to prevent the sale. And so far from his being unable to prevent it, he is found paying, several days before the time appointed for the sale, the whole amount due for debt and costs, only omitting the master’s fees, because the amount was not ascertained. And then, as though he would leave nothing undone to guard against the possibility of a sale, we find the mortgagor going, the day before the sale was to take place, twenty or thirty miles, to Troy, and seeking the master for the sole purpose of paying his fees, and then, when he finds himself unable to ascertain the amount of those fees, so that he can pay them before he is obliged to return home, we find him seeking one whom he, at least, regarded as his friend, and with whom, as it appears, he had long had extensive business transactions, and disclosing to him the object of his journey to Troy. Whatever was said at that interview, it cannot be doubted that Glass left Wight with entire confidence that he would take care of his interests, and that a sale of his property would be prevented. If indeed, Wight did not undertake with Glass to pay the master’s fees and stop the sale, he at least made such statements as had the effect to mislead Glass and induce him to leave Wight, and subsequently to leave Troy, with a full reliance that the object ©f his visit had been effectually accomplished, and that in no event would a sale take place. The whole conduct of Glass forbids the conclusion that he would have left while he supposed there was a possibility of a sale of his property.

And yet the sale did take place. How was it brought about, and by whose procurement? Bates, the owner of the decree,, has sworn that he did not- dream that by possibility the sale could take place. Glass had gone home secure in the belief that he had done all that was necessary to arrest all further proceedings. And yet the property was sold, ■and the friend to whom Glass had applied to assist him in preventing the sale, and who himself admits that he did undertake with Glass that in case the sale could be adjourned, he would pay the fees of adjournment, is the only person instrumental in procuring the sale to take place, and then, for a mere nominal price, becomes the purchaser of the whole property. He attended the sale, as we have the right to infer, in consequence of the understanding between Mm and Glass. It is evident, from the course pursued by the master, that he regarded Wight as representing the interests of Glass. When inquired of by the master, what was to be done in relation to the sale, instead of applying for an adjournment, as even according to his own account of the understanding between him and Glass, good faith required bim to do, we find Mm making such a reply to the master as evidently induced bim .to believe that, since Glass had called on him the evening before to settle the fees, he had changed his purpose, and had sent his friend to attend the sale for the purpose of becoming the purchaser of the property. Had Wight come to the sale an utter stranger to the parties— had he purchased the property as a mere adventurer, even then, this would be a case for relief according to every rule of equity wMch has ever been applied to cases of this description. In such a case, however, relief would only be granted upon condition of indemnity to the purchaser. But in -this case, so far from providing indemnity for the purchaser in setting aside the sale, I tMnk it a proper case to charge upon the purchaser the expenses of the sale and the costs to wMch he has unconscientiously subjected the mortgagor in getting rid of the sale. The title was unfairly acquired by him, and when applied to and requested to relinquish what in good conscience he had no right to, he unjustly refuses and endeavors to throw obstacles in the way of the mortgagor’s obtaimng the property by a false pretence of having sold it. If he did not intentionally deceive Glass, he must, at least, have been aware that Glass had been misled by what had passed between them, and under such circumstances, common fairness should have dictated to him that he had no right to make a profit or derive any personal advantage against Glass out of the transaction.

An order must be entered setting aside the sale of the 18th of July, and directing that the purchaser, Daniel Wight, pay the costs of the sale and subsequent proceedings, and also the costs of this motion to be taxed.