First National Bank v. Conger ( 1873 )

Cole, J.

ag Only two questions are made here in the argument, by appellant’s counsel. It is first insisted that the bid was madeby deferidant under a valid understanding by all the parties interested, that only the excess of the bid over the amount due him on his mortgage should be paid; and also, that whatever may have been the fact respecting the authority of Ohileote to bind the plaintiff, aside from the agreement of the two banks to share, pro rata, in the imoceeds of the foreclosure, that this fact alone made them jointly interested and thereby authorized Ohileote to bind the plaintiff. The evidence in the case is not properly before us, and hence we cannot determine the fact anew, but must accept the finding as conclusive. The agreement of the two banks to share fro .rata in the proceeds does not make them joint parties — they have several and respective shares, and are not joined and identified in the one whole.

a joticial s-W3Again, it is -urged that if there was a mistake as to the authority of Ohileote, and the right of the defendant to first Pay b*s OT'n mortgage> this would give the defendant the right to have the bid set aside and not enforced. This might be true if the defendant had asked it and offered to place the parties in statu quo ; or, possibly, even if he had offered to account for the proceeds of the resale by him, provided such resale was made in good faith before notice of the mistake. But nothing of this kind appears. Surely, the defendant could not resell the land and place it beyond the reach of the plaintiff, and then have the sale set aside, or the payment of the bid not enforced because of the mistake. He must be diligent after the discovery of the mistake, and must also offer to do equity.

Affirmed.