Fisher v. Hersey ( 1879 )

Smith, J.:

The facts found by the referee relating to the question of fraud are established by evidence which, in most material particulars, is uncontradicted. Not only did the defendant Hersey procure Whittier to act as a puffer at the sale, but by express arrangement betAveen them, concealment and artifice were resorted to, to impose upon the plaintiffs, and induce them to bid more for the property than they would othenvise have done. Laying out of view the misrepresentations made by Whittier before the sale, the conduct of Hersey and Whittier at the sale in pretending to be strangers to each other, according to their preconcerted arrangement, shows very clearly that the bid of Whittier was procured by Hersey to be made, with the design of taking advantage of the eagerness of the plaintiffs to enhance the price. The employment of a puffer for such a purpose, and not merely as a defensive precaution against an undue sacrifice of the property, is a transaction that cannot be justified by a court of equity. (Smith v. Clarke, 12 Ves., 477; Veazie v. Williams, 8 How. [U. S.] R., 148; 2 Kent's Com., 537.)

The conduct of the defendant and of his instrument, Whittier, was a fraud upon the plaintiffs, and they are entitled to be released from their purchase, and to have the property re-sold. Merely reducing their bid to a sum considered to be the value of the property, and compelling them to stand purchasers at that sum, is dealing out to them but partial justice. For aught that appears, they would not have bid, even that sum for the property, but for the deceit practiced upon them. They are entitled to an opportunity to bid at a fair sale.

It is insisted by the respondents that the order of the Special Term is discretionary and not appealable. Not so. The plaintiffs are entitled, absolutely, to have the fraudulent sale set aside, and it is not a case for imposing terms on granting relief.

The order of the Special Term should be reversed, and a re-sale ordered under the judgment, with ten dollars costs and disbursements of the appeal, and the costs of prior motion at Special Term, and the fees of referee and disbursements on reference to be paid by the defendant Hersey to the plaintiffs.

Talcott, P. J., concurred; Hardin, J., not sitting.

So ordered.