McDonald v. Seidman

VICKERY, P. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action brought by King to mar-shall a lien upon certain property composed of two pieces which were separately appraised, one for $30,000 and the other for about $3,000. The sale was duly advertised, appraised and the small parcel purchased by Seidman at sheriff’s sale for $2,700. On this smaller parcel there was a first mortgage held by the Federal Loan Company to the full knowledge of B. M. McDonald. The Federal Loan Company was not a party to the suit, although this mortgage was something like $1,700 at the time the property was purchased at sheriff’s sale. Upon motion of the sheriff the sale of this parcel was confirmed as to Seidman, although she had not paid the purchase money.

Shortly thereafter she filed a motion to set aside the sale on the ground that she had purchased the property, as she supposed, free and clear of encumbrance, while really there was $1,700 ogainst the property. Subsequently a petition to set aside the same was filed and the sale set aside. No motion was filed to set aside the sale to King, who purchased the larger parcel, but McDonald in his answer set up that if the sale to Seidman was set aside, the sale to King should also -be set aside. Error was then prosecuted to the Court of Appeals. In affirming- the judgment of the lower court, this Court held:

1. As the purchaser was misled in buying this property in that she was not aware of the mortgage indebtedness, the order of confirmation of the sale should be set aside, as any other ruling would be using the court to perpetrate a fraud upon the purchaser.