The Chancellor.
The original bill was filed by Small against Boudinot, on a mortgage given by Boudinot and wife to Small, to secure, in part, the purchase money for the land embraced in the mortgage. Boudinot, by his answer, sets up fraud in the sale, and further, that the conditions of the sale have not been complied with.
The object of the cross-bill is to compel Small to take a re-conveyance of the property, cancel the, mortgage and the bond it was given to secure, and account for the principal and interest money paid on the bond and mortgage.
Small was the owner of a valuable tract of land in the city of Newark. In 1836 he entered into a written agreement with a number of individuals to sell them the land. By the agreement the purchase was made up into shares of one thousand dollars each. Boudinot was the owner of one share and Small of five shares. The terms were, that a certain per cent, was to be paid down, the property was then to be sold under the management and control of the [390]*390majority of the shareholders, and Smal.1 was to be paid the balance of his purchase money out of the proceeds of the sale. It was sold off in building lots at public sale, and Boudinot became the purchaser of a lot at five thousand dollars. He paid one thousand five hundred dollars of the purchase money, and for the balance gave the bond and mortgage in question, upon which several years’ interest has been paid.
The bill alleges the sale was fraudulent.
First. That “ there were under-bidders for the said property, and that such under-bidding upon the same, in opposition to the complainant, was in behalf, or at the instance of the said George D. Small, to inflate the price of the property ; and the price at which the same was struck off was far beyond what the said property would bring, and beyond what any other person would have been willing at that or other time, before or since, to give for the same.”
There were twenty-eight owners of the property. The sale was made by them ; and of which number the complainant in the cross-bill was one, as well as the defendant. How, then, there could have been under-bidding at the sale in opposition to the complainant, and on behalf, or at the instance of the defendant, cannot well be conceived. If there,_ were any bids in opposition to the complainant, in behalf of the defendant, they were not under-bids, but bona fide bids, by which the defendant was bound. What authority had Small to underbid ? He could not do it without the authority of the vendors. It is not . alleged that they gave him any authority. If they did, as the complainant was one of the vendors himself, he ought to go further, and, at least, allege and prove that it was a secret contrivance without his knowledge or consent.
Again. The complainant alleges that he continued to pay interest on\his bond until he was informed “ that the said sale was the result of contrivance and management between Small and some of the committee, secretly and designedly to deceive and defraud the purchasing (purchasers) at said sale.”
But what the contrivance between Small and some of the [391]*391committee was, and how the said sale was the result of such contrivance, is not stated, but left to conjecture. The complainant had before alleged that the under-bidding was at the instance and on behalf of Small. This has no connection with the charge of contrivance between Small and the committee.
There is one other allegation of fraud in the bill. I will state it in the language of the bill: “ That he has understood, since the payment of the said interest and notes, that the said sale was promoted and set forward, and was carried on, by means of a secret understanding between the said George I). Small and some person or persons on the committee appointed to conduct the sale as aforesaid, and in a fraudulent manner, for the purpose of deceiving your orator, Elias E. Boudinot; and that there were such proceedings had on the part of the said persons composing the said committee, or some of them, upon arrangement made with the said George D. Small, as were suppressive of such facts as ought to have been known to the bidders, and such as were fraudulent, to deceive the said purchasers, and especially your orator; and that there was, in the inception of the said agreement for purchasing as aforesaid, and conduct of the said sale, fraud, misrepresentation and concealment on the part of the said George D. Small, by means of which the said purchase was made by your orator, Elias E. Boudinot, and with a design to sell off the said lots, and particularly the lot sold to your orator, at a price inflated and far beyond its value.”
It is apparent that a charge like this is no foundation for relief. A party who seeks redress, on the ground of fraud, must point out and specify the fraud. A general charge of fraud is not sufficient. The party alleging it must state the facts which constitute the fraud. A general charge of fraud in a bill is not sufficient to authorize a decree for the complainant, on demurrer to the bill. McCaleb v. Perry, 5 Heyward 88. How can the defendant meet this charge ? How can he answer it ? The charge is only this : that the complainant has understood (without even averring his be[392]*392lief of its truth) that the sale was conducted fraudulently; that the committee and Small were the wrong-doers, and that they suppressed certain facts which ought to have been made known. In what respects the sale was fraudulently conducted, or what facts were suppressed, to the detriment of the complainant, we are not told.
The fraud is denied in the answer, without any reserve, and I do not think there is the least evidence to suspect even that any fraud upon the complainant was contemplated or practiced, either by Small, or the committee, or by any one else. All the evidence upon which the complainant’s counsel rely is that, at the sale, two lots were purchased in on behalf of the vendors. But how can this affect the purchase of the complainant ? Suppose the other lots were fraudulently sold, and that, by the contrivance of the defendant, the price was run up and became exorbitant; unless the complainant can show that the persons who were his competitors at the sale for the very lot he purchased, were fictitious bidders, and that he was defrauded, the fact that there were under-bidders for other lots, and fraud in the sale, can avail the complainant nothing.- Now, it is not shown that there were any bidders against the complainant. From everything that appears in the case, the complainant obtained the lot at his own price. The complainant does not show himself entitled, either to the morality or the law laid down by Lord Mansfield in Baxwell v. Christie, Cowper 395. There is no fault in the counsel who drafted this bill — the facts are wanted upon which a bill can stand.
As to the relief asked for, on the ground that the conditions of sale have not been complied with. The third condition was as follows :
3. The buildings will be sold, to be removed within thirty days from this date, from the premises.
The buildings were sold separate from and after the sale of the lots. Small bought a lot upon which was a building, and afterwards purchased the building. He has not removed it, and the complainant insists he has a right to have the contract rescinded, and the parties placed in statu quo.
[393]
Free access — add to your briefcase to read the full text and ask questions with AI
The Chancellor.
The original bill was filed by Small against Boudinot, on a mortgage given by Boudinot and wife to Small, to secure, in part, the purchase money for the land embraced in the mortgage. Boudinot, by his answer, sets up fraud in the sale, and further, that the conditions of the sale have not been complied with.
The object of the cross-bill is to compel Small to take a re-conveyance of the property, cancel the, mortgage and the bond it was given to secure, and account for the principal and interest money paid on the bond and mortgage.
Small was the owner of a valuable tract of land in the city of Newark. In 1836 he entered into a written agreement with a number of individuals to sell them the land. By the agreement the purchase was made up into shares of one thousand dollars each. Boudinot was the owner of one share and Small of five shares. The terms were, that a certain per cent, was to be paid down, the property was then to be sold under the management and control of the [390]*390majority of the shareholders, and Smal.1 was to be paid the balance of his purchase money out of the proceeds of the sale. It was sold off in building lots at public sale, and Boudinot became the purchaser of a lot at five thousand dollars. He paid one thousand five hundred dollars of the purchase money, and for the balance gave the bond and mortgage in question, upon which several years’ interest has been paid.
The bill alleges the sale was fraudulent.
First. That “ there were under-bidders for the said property, and that such under-bidding upon the same, in opposition to the complainant, was in behalf, or at the instance of the said George D. Small, to inflate the price of the property ; and the price at which the same was struck off was far beyond what the said property would bring, and beyond what any other person would have been willing at that or other time, before or since, to give for the same.”
There were twenty-eight owners of the property. The sale was made by them ; and of which number the complainant in the cross-bill was one, as well as the defendant. How, then, there could have been under-bidding at the sale in opposition to the complainant, and on behalf, or at the instance of the defendant, cannot well be conceived. If there,_ were any bids in opposition to the complainant, in behalf of the defendant, they were not under-bids, but bona fide bids, by which the defendant was bound. What authority had Small to underbid ? He could not do it without the authority of the vendors. It is not . alleged that they gave him any authority. If they did, as the complainant was one of the vendors himself, he ought to go further, and, at least, allege and prove that it was a secret contrivance without his knowledge or consent.
Again. The complainant alleges that he continued to pay interest on\his bond until he was informed “ that the said sale was the result of contrivance and management between Small and some of the committee, secretly and designedly to deceive and defraud the purchasing (purchasers) at said sale.”
But what the contrivance between Small and some of the [391]*391committee was, and how the said sale was the result of such contrivance, is not stated, but left to conjecture. The complainant had before alleged that the under-bidding was at the instance and on behalf of Small. This has no connection with the charge of contrivance between Small and the committee.
There is one other allegation of fraud in the bill. I will state it in the language of the bill: “ That he has understood, since the payment of the said interest and notes, that the said sale was promoted and set forward, and was carried on, by means of a secret understanding between the said George I). Small and some person or persons on the committee appointed to conduct the sale as aforesaid, and in a fraudulent manner, for the purpose of deceiving your orator, Elias E. Boudinot; and that there were such proceedings had on the part of the said persons composing the said committee, or some of them, upon arrangement made with the said George D. Small, as were suppressive of such facts as ought to have been known to the bidders, and such as were fraudulent, to deceive the said purchasers, and especially your orator; and that there was, in the inception of the said agreement for purchasing as aforesaid, and conduct of the said sale, fraud, misrepresentation and concealment on the part of the said George D. Small, by means of which the said purchase was made by your orator, Elias E. Boudinot, and with a design to sell off the said lots, and particularly the lot sold to your orator, at a price inflated and far beyond its value.”
It is apparent that a charge like this is no foundation for relief. A party who seeks redress, on the ground of fraud, must point out and specify the fraud. A general charge of fraud is not sufficient. The party alleging it must state the facts which constitute the fraud. A general charge of fraud in a bill is not sufficient to authorize a decree for the complainant, on demurrer to the bill. McCaleb v. Perry, 5 Heyward 88. How can the defendant meet this charge ? How can he answer it ? The charge is only this : that the complainant has understood (without even averring his be[392]*392lief of its truth) that the sale was conducted fraudulently; that the committee and Small were the wrong-doers, and that they suppressed certain facts which ought to have been made known. In what respects the sale was fraudulently conducted, or what facts were suppressed, to the detriment of the complainant, we are not told.
The fraud is denied in the answer, without any reserve, and I do not think there is the least evidence to suspect even that any fraud upon the complainant was contemplated or practiced, either by Small, or the committee, or by any one else. All the evidence upon which the complainant’s counsel rely is that, at the sale, two lots were purchased in on behalf of the vendors. But how can this affect the purchase of the complainant ? Suppose the other lots were fraudulently sold, and that, by the contrivance of the defendant, the price was run up and became exorbitant; unless the complainant can show that the persons who were his competitors at the sale for the very lot he purchased, were fictitious bidders, and that he was defrauded, the fact that there were under-bidders for other lots, and fraud in the sale, can avail the complainant nothing.- Now, it is not shown that there were any bidders against the complainant. From everything that appears in the case, the complainant obtained the lot at his own price. The complainant does not show himself entitled, either to the morality or the law laid down by Lord Mansfield in Baxwell v. Christie, Cowper 395. There is no fault in the counsel who drafted this bill — the facts are wanted upon which a bill can stand.
As to the relief asked for, on the ground that the conditions of sale have not been complied with. The third condition was as follows :
3. The buildings will be sold, to be removed within thirty days from this date, from the premises.
The buildings were sold separate from and after the sale of the lots. Small bought a lot upon which was a building, and afterwards purchased the building. He has not removed it, and the complainant insists he has a right to have the contract rescinded, and the parties placed in statu quo.
[393]*393As to all the allegations in the bill, of motives and declaratons of the vendors in prescribing this condition of the sale, they cannot be considered. The condition is reduced to writing, and the motives of the parties, or their subsequent parol declarations, cannot give construction to it. Besides, no attempt was made to prove the allegations, and as far as the character of the charges would admit of a denial by him, they are denied by the answer of the defendant.
This condition of sale was a matter between the vendors and the purchasers of the buildings. It was not a condition upon which the lots were sold. The purchaser of a building took it npon the condition that he would remove it in thirty days. Of what benefit is this condition of sale to a purchaser of a lot without a building ? If it is a farm-house; if the condition requires its removal, it does not prevent another of like character being erected on the same lot. If the object to be accomplished, and which was in view of the parties interested, was to rid the lots of a certain description of buildings, this condition did not accomplish it. The purchasers were in no wise restrained as to the character or description of buildings to be erected, nor were they prohibited from' retaining buildings already there.
It is not necessary to examine the other demands upon which the relief sought for by the cross-bill is resisted.
The cross-bill must bo dismissed, with costs. The complainant in the original bill is entitled to his decree, with a reference to a master to compute the amount due on his mortgage.