Mulks v. Allen , 12 Wend. 253 ( 1834 )

By the Court,

Savage, Ch. J.

In Lansing v. Quackenbush, 5 Cowen, 38, this court refused to correct the endorsement on the execution, when property had been sold which did not belong to the defendant, because a court of equity was deemed a more proper forum to grant relief; and in Vandenburgh v. Briggs, 7 Cowen, 367, we refused to correct a mistake of the plaintiff’s agent on the ground that junior judgment creditors had acquired rights; but in The Ontario Bank v. Lansing, 2 Wendell, 260, we vacated a sale where the plaintiffs had inadvertently bid a sum less than the amount intended to have been bid. This is a stronger case in favor of such a motion than either of the cases above referred to. Whether the defendant did or did not intend to mislead the plaintiffs’ executors and the deputy, there is no doubt that they were deceived by the representation he made. The junior judgment creditors have no equity superior to that of the senior creditor, nor equal to it; their claim to the property is subject to the prior lien, which must'first be paid, and legally paid, before the junior creditors have any rights. It is said that the personal property of the defendant was sold for less than its value, and that the plaintiff’s estate has had the benefit of such sale, and proof is offered in support of this allegation. Where there has been a sale at auction, the price brought must be considered a better test of the value of the property, than a valuation put upon it by individuals after the sale. The motion is granted, on payment of the costs of resisting.