Lay v. Brown ( 1912 )

Kirby, J.,

(after stating the facts). It is contended for appellant that no such agreement was made as claimed by appellee, and that if made, it was invalid, being against public policy and without consideration, and not binding against her. .

The testimony was sufficient to warrant the finding of the chancellor that appellant agreed to refrain from any further proceeding against the estate of W. E. Lynn and Sarah Lynn, so far as this land was concerned, in consideration that appellee Robinson would refrain from bidding at the sale of the interest in the lands ordered sold for the satisfaction of her judgment against the estate, at which sale Robinson did not bid, and said half interest was purchased by appellant.

There is no testimony tending to show that there was any conspiracy to prevent competition at the public sale of the lands, or to stifle bidding, further than as the agreement on the part of Robinson not to bid would have such effect. Without doubt, he had the right to bid, and, having succeeded to the rights of the heirs or devisees of the widow, Sarah Lynn, in the lands ordered to be sold, which interest, he understood at the time of his purchase, amounted to an undivided half, was at the sale, as he said, for the purpose of protecting his interest by bidding. He did not bid, and the half interest in the lands sold was purchased by appellant at the sale. He refrained from bidding, on the express promise of appellant, as the chancellor found, that there would be no further proceeding against the estate of Lynn to subject any greater interest in the lands to the payment of the debt than that already sold. Appellant was aware at the time of making such agreement that another one-sixth interest in the land could be subjected to the payment of her claim.

In Hopkins v. Ensign, 122 N. Y. 144, 25 N. E. 306, the court reviewing many of the older cases in which a stricter doctrine was announced, said: “The court will now look to the intention of the parties; and if they be fair and honest and the primary purpose be not to suppress competition, but to protect their own rights, and there be no fraudulent purpose to defraud others interested in the result of the sale, the agreement may be upheld. The question is one of fact to be determined by the trial court upon the evidence before it.”

The primary purpose of this agreement was not to prevent competition at the sale nor to stifle bidding, but to protect the rights of the parties, so far as the evidence shows, and it was not an agreement against public policy and void on that account.

If the land sold brought less than its reasonable value, it does not appear from the evidence, and if the agreement of appellee not to bid had resulted in such effect, those interested, on that account, had their remedy in an application to set the sale aside. Neither can it be said that the agreement of appellant was without consideration, the agreement of appellee not being in contravention of public policy. A consideration need not be a thing of pecuniary value, or even reducible to a money value. A waiver of a legal right at the request of another party is sufficient consideration for a promise. Certainly Robinson had the right to bid at the sale, and he thought it was necessary in order to protect the interest in the lands which he had purchased, and intended to do so. Appellant procured him to refrain from exercising his right, agreeing in consideration therefor to relinquish her right to proceed against the lands in controversy for a further interest than that ordered to be sold. There was a consideration, certainly, of forbearance on the part of Robinson and without doubt upon the part of appellant to relinquish a thing of value by such agreement. 9 Cyc. 311-315; Skyes v. Lafferty, 27 Ark. 407; Kietsch v. Cole, 47 Minn. 320; Hopkins v. Ensign, supra.

Finding no error in the record, the decree is affirmed.