Opinion
11-05-1887
SCHULLING v. LINTNEE.
John F. Harned, for petitioner. Alfred Hugg, for defendant.
Bill to foreclose. On petition to set aside sale.
John F. Harned, for petitioner. Alfred Hugg, for defendant.
BIRD, V. C. The petition was filed in a foreclosure suit. In that suit the sheriff made sale upon an execution regularly issued upon a decree directingsuch sale. Mrs. Lintner now comes in by her petition and asks that that sale be set aside. Her ground for this is surprise. She is a German woman, and understands but very little of the English language. She lived upon the property which was covered by the mortgage. Process of subpoena was served upon her regularly. She made some inquiry respecting it, but gave the matter no further attention until after the sale, not knowing that a decree had gone against her or that her property was advertised. Learning of the fact immediately after the sale, she made inquiries and ascertained the situation. The property sold for $1,380, when from her statement, and from the rents and profits which she receives, it is worth $2,000. She has raised the amount due upon the execution, together with costs, and tendered it to the sheriff, and stands ready to pay the same. Is she entitled to relief? I think she is. It has been urged that the sale was open and fair, and that if the property did not bring the full price it brought a fair price. It is also urged that sales of this character should not be interfered with by discouraging bidders by depriving them of the benefit of bids which they have fairly obtained. These considerations are always taken into account, and are conceded to be of great importance. But the rights of property under such circumstances are equally important. It is very difficult for a court of equity to make up its mind, under such circumstances, to deprive an individual of her estate, when by refusing to do so it takes nothing from another except the right which that other has acquired by a bid at auction. This is not mere sentiment; it is clear justice and equity. Mrs. L. is at the age of 72 years, and swears that she expected the notice of sale would be posted on her house, and for this she waited. I think the case is controlled by the case of Kloepping v. Stellmacher, 21 N. J. Eq. 328. As between the parties before me, the merits are with Mrs. Lintner.
Besides this important question, another is presented which raises an insurmountable difficulty in the way of confirming this report. The petitioner insists that it was the duty of the sheriff to sell the land in parcels. The force of this is not resisted by the counsel of the purchaser. I must conclude, from what was admitted before me, that this was a serious mistake upon the part of the officer, and that under the practice and the decisions heretofore rendered, upon this ground, if no other, the sale cannot be confirmed. Coxe v. Halsted, 2 N. J. Eq. 311; Merwin v. Smith, Id. 182; Johnson v. Garrett, 16 N. J. Eq. 31.
I will advise that the sale be set aside, and that the property be again advertised and sold in parcels, unless the amount due, including principal, interest, and costs on the complainant's decree, be paid within five days after the signing of this order. Such order will be without costs.