Merwin v. Smith , 2 N.J. Eq. 182 ( 1839 )

The Chancellor.

I have no hesitation in continuing the injunction in this cause until the hearing. There is enough in the facts admitted by the answer itself, to justify that course. The charges in the bill, for the purposes of this motion, are to be taken as true unless met by the answer, and the allegations in the answer are entitled to the same credit. This was the rule established on the argument, and 1 shall abide by that decision and treat the case accordingly. It, by no means follows, that a technical denial of the complainant’s equity, will, in all cases, dissolve the injunction. That must rest in the sound discretion of the court, and depend on the peculiar character and circumstances attending each case. But independent of these rules, it is manifest from the whole case that the aid of the court is due to the complainants, at least until they have the opportunity of taking the proofs. I shall consider it my duty, on this motion, to anticipate the decision on the merits no farther than to state my present views on some of the leading points of the case, not meaning thereby to conclude the defendants, if they think pro* per so to do, from discussing them again on- the final hearing.

The complainants, being judgment and execution creditors, stand in a position which fully entitles them to be heard, and if the sale made by the sheriff is in any respect illegal, it may be set aside at their instance.

First; As to the advertisement of the sheriff. Two objections are taken to this : 1. That the one put up in the different townships was upon the executions in the common pleas alone, while that in the newspaper- at Camden was as well upon the executions out of the supreme court as those in the common pleas. If this allegation had been true, the result would have been material, because the property sold was much more than sufficient to-satisfy the executions issued from the common pleas, and' it was sold in different parcels. By the answer I consider this part of the case fairly met: the sheriff says this statement is not true, for he advertised the property on the executions out of both courts,, as well by the notices put up in the townships as that in the newspaper ;■ that the complainants have stated the notice correctly from tile newspaper, and that the notices put up in the different townships were “ substantially” the same. He then accounts-for the one which complainants saw put up in the township, by saying that there were some drawn wrong and put up by mistake, but afterwards corrected. The word “ substantially,” it is insisted, is too general and evasive; that the defendant should' have gone on and set out particularly what the notice was which he did put up; but this is too nice a distinction.' Taken together, and giving it a fair meaning and construction, the defendant-must be understood as declaring the notices to have been for a sale upon the executions issued from both courts, as well in the newspaper as in the advertisements, and as accounting for thecomplainants’ charge in this respect by the mistake which he-explains. This objection, therefore, is answered. But it is- objected in the second place to this advertisement, that after specifying sundry lots and distinct parcels of property to-be sold, .the sheriff adds, “ together- with- all his (the defendant’s) other veal-estate in the county of Atlantic, of which a more particular description will be given on the day of saleand that under such-advertisement on the day of sale he gave a more specific description, and sold divers tracts of land. As to the lots sold under this-description, a serious question is raised whether the law has been complied with. My impressions are so strong against its sufficiency, that I would not, as to these lots, think it right to dissolve the injunction, if the case stood upon this ground alone. Is this, in fact, any notice at all? The ninth section of the act, entitled, “An act making lands liable to be sold for the payment of debts,” makes it the duty of the sheriff to advertise the time and place where the lands., tenements, hereditaments and real estate will be exposed to sale, one of these notices to be put up in the township where the lands lie. This statute has some substantial object and meaning, and what can be more important than to inform the public what specific property is intended to he sold. A defendant may have many different parcels of land in a county, and unless it be in some way defined, so that the public may know what is intended to be sold, the great use of the notice is gone. I do not know that this question has ever been settled in our state courts. In the case of Den v. Zellers, 2 Halsted, 154, the judge at the circuit said nothing more than that “a small variance or inaccuracy in the description of the premises could not impeach the sale, when it appeared from the description it was fully understood what property was to be sold.” This is an intimation that some description by which the property may be known, though imperfect in itself, is necessary. My present convictions are, that the advertisement is in this particular defective, and not a compliance with the law.

Second, As to the manner of conducting the safe. The bill charges, that the sheriff sold in one parcel the village of Catawba, embracing a saw-mill and water power, which produces annually six hundred dollars clear of all expenses, eight two-story frame dwelling-houses and lots of land, eight one-story frame dwelling-houses and lots of land, a large and elegant mansion-house and out-buildings which cost in its construction exceeding ten thousand dollars, a large store-house, blacksmith’s' shop, wheelwright’s shop, lime-kiln, two wharves, a fishery, a gristmill seat, and about twelve hundred and eighty acres of land; that the property so sold was worth at least twenty-five thousand dollars, and would command that price at a fair public sale; that the whole sold in this way for six hundred and ninety dolIars only over and above an incumbrance of six thousand dollars; .and that the purchaser has since declared that the wood alone on $he land was worth sixteen thousand dollars. This is .a strong .state of facts, especially when made under the oath of the party, .and the manner in which it is met should be well considered. The sale of the entire tract in one parcel is not denied, nor the .amount for which it sold ; but it is alleged that a fanciful and imaginary value and description have been given to this property ; that the mansion-house and property is an entire establishment, and that the land is essential to'it and must be sold with jit; that the small houses are only residences of laborers .and wood-cutters, and that no person would want a part without the whole of the establishment. It is further urged that there was a mortgage on the entire property of six thousand dollars, which rendered it proper tha,t it should be sold in one lot.

I will not decide, at present, on the propriety or impropriety ,of the sheriff’s course on this part of the case, nor indeed should I until the facts are more fully, before me. The discretion confided to him as a public officer, in selling property, must not be ¡unnecessarily or hastily interfered with, and certainly not with-put the charges being fully sustained by indisputable evidence ,• fiut ¡this wholesale method of disposing of a defendant’s property pan never be justified upon any other ground than as being the best mode for making it bring the most money. A property pray, indeed, be so .circumstanced, ope part so dependent on the other, as to require a sale in large parcels ; but the general rule is, that it must be sold in different parcels if plainly divisible. Woods v. Monell, 1 John. Ch. Rep. 505; Tiernan v. Wilson, 6 Ibid, 413.

A defendant in execution has his rights, and his property is not to be sold under disadvantageous circumstances. In this case, the result of the s.ale would seem tp have beep peculiarly unfortunate; for the charge in the bill is plainly made, that the purchaser has boasted that the wood on the premises, for the whole of which he gave, including the incumbrances, less than pevem thousand dollars, is worth sixteen thousand dollars, This is not met by the answer in any way. I am willing to have the witnesses examined on this part of the case, before the sheriff’s title is passed to the purchaser.

Third, As to the bid of Gaskill, the agent. The facts respecting him are disclosed by the answer itself. The complainants, being execution creditors to the amount of fifteen thousand dollars in the hands of the sheriff, appointed this man their agent, with authority to buy for them in case a sale was made. When he came to act for his principals, he produced his written power of attorney, under their hands and seals, and offered to leave it with the sheriff. The sheriff declined receiving his bid without he gave security. This was the same thing as shutting him out altogether. The consequence was the complainants, who had a deep interest, were in fact unrepresented at the sale. The whole property was sold for a little less than to satisfy the prior executions, and their demands were completely lost. The sheriff had no right, in my opinion, to deny to this agent the privilege of being a bidder for his principals, upon any ground yet exhibited in the cause. He was a freeholder in the county, though for a small amount, and his character no way impeached. He was to bid on the credit of his employers, and not his own. In the case of Stevenson and Woodruff v. Black, Saxton, 344, it was held, that a sheriff had no right to insist on any terms at a sale not warranted by law, or to create liabilities which the law does not impose. Can it be that a sheriff may impose these extra, terms on a fair agent, fully authorized ? — terms which in effect preclude all opportunity of competition for the property, and the party be denied all relief, upon the pretext that it was the sheriff’s discretion, and he may do as he pleases ? This exercise of the sheriff’s discretion must be a legal one, and so controlled as to work no injustice or oppression. Had this bidder been allowed, it is not an improbable result that these entire executions might have been satisfied at this sale. The complainants say expressly they would have bid that amount. I do not intend to say that a sheriff may not refuse to take the bid of an irresponsible man, or of any one when he may be well satisfied the sale could only be embarrassed by taking it. The propriety of such a course must, however, be always open to be judged of by the evidence. This is a different case. The bidder was an agent representing large execution .creditors, and was to act on the faith due to them rather than himself. They were not present, nor were they apprised that this security would be required. . As this objection covers the whole case, it is enough in itself to demand of the court a continuance of the injunction until it can be further looked into.

The fourth and fifth objections urged against this sale, relate to the sale of the cedar swamp and the enormous sacrifice of property. It is not necessary to express any opinion upon them at present, the case as to the propriety of continuing this injunction having been fully settled by the other points. If it shall turn out, however, finally, that upon a sale by the sheriff of two tracts, one of fifty acres and one of three hundred and fifty acres, it is proposed to convey a tract of near eight hundred acres, and that a property worth rising thirty thousand dollars has been by this whole ■ course of proceeding sold for about three thousand five hundred dollars, it will call loudly for the consideration of the court.

There is one suggestion made on the argument which should be noticed; and that is that Mr. West, the defendant in the executions, may commit waste with impunity in the event of the injunction not being dissolved. As this is a mere suggestion, and there is nothing to justify any belief of collusion between him and the complainants, I cannot presume it will take place. Should any such case, however, be made to appear by proof hereafter, it is very easy to apply a remedy, by requiring the complainants to pay off the prior executions, or by dissolving the injunction. It is my intention, pending this controversy, that the property shall not be wasted.

Motion for dissolving the injunction denied.