Wetzler v. Schaumann. interest. The price at which the petitioner proposed to sell them the property, was $5500, or thereabouts. After paying the complainant's mortgage and costs of suit upon it, and petitioner's claim of $1800 and interest, there would, at that price, remain a balance of the purchase money to answer the costs of the suit in New York. In the course of these negotiations, Flemming and Roll had recourse to Mr. Wetzler, the holder of the mortgage, with a view to ascertaining whether the petitioner's statements in regard to the mortgage (they allege that he said it was not yet due, and could stand) were correct. In their interview with Mr. Wetzler, he stated to them that not only was the mortgage due, but that the property would be sold under the decree for foreclosure, on the 15th day of July. On the 7th of July, in the course of the negotiations between them and the petitioner, they taxed him with misrepresentation in the matter, and told him what Mr. Wetzler had told them that the property was to be sold on the 15th. He expressed surprise, saying he had had no notice of it. The petitioner, and Flemming and Roll, continued their negotiations, he undertaking to make satisfactory arrangement as to the mortgage. According to their statement, it was agreed that he and they should meet at Elizabeth on the 9th, in reference to the assessments on the property. He says they were to go to Elizabeth on the 9th, to see about the assessments, but that it was not agreed that he should meet them there; but that he should meet them in New York, on the morning of the 10th. It is of no importance who is right on this point. It is clear the petitioner did not expect that his property was to be sold on the 9th. Flemming and Roll, on the 9th, went to Elizabeth to see about the assessments, and, as they say, while making inquiries about the property, accidentally learned that it was to be sold by the sheriff that day, instead of on the 15th. They remained in Elizabeth some hours, up to the time fixed for sale, and at that time were at the There some conversation took place between sheriff's office. Wetzler v. Schaumann. them and Wetzler's solicitor, the result of which was the determination of the latter to set the property up, relying on their buying it. It does not appear that any words or acts of theirs induced him to think so. The property was set up by the direction of Wetzler's solicitor, and was struck off to them at $2600. The petitioner called on them in New York, on the morning of the 10th, and then, to his surprise and indignation, learned from them that the property had been sold, and that they had bought it. He says he expressed his surprise to them, and told them there must be some mistake somewhere; that they then told him they had bought it to protect his interest, and that the purchase would not prejudice that interest, as they would take no advantage of it. This is denied on the part of Flemming and Roll, however. The next day he offered them the amount of their bid, in a certified check, and requested them to let him take the deed for the property. They refused to do so unless he would get a settlement of the suit in New York, in which, it is admitted, he had no interest whatever. The petitioner has caused the complainant's demand, under the decree and execution, to be assigned to a friend of his, who now holds it accordingly. No objection, therefore, is made, on the part of the complainant, to setting aside the sale. The purchasers insist that the petitioner was guilty of negligence in not informing himself as to the time when the sale was to take place, and that they "owed him no duty," and therefore cannot be deprived of the benefit of the purchase, because of their communicating to him what Wetzler said to them as to the time of sale. The right of the petitioner to the aid of the court does not depend on the obligation of Flemming and Roll to him. It is conceded that they stated to him what Wetzler had told them. It is not denied that he was not then aware that the property was to be sold. His whole conduct shows, not only that this was so, but that he supposed, after what they had told him, that the day of sale was to be the 15th. Unless Flemming and Roll are to be charged with duplicity, it must Wetzler v. Schaumann. be admitted that they thought so, too, and only accidentally ascertained, on the 9th, while they were in Elizabeth, that the sale was to take place on that day. While it may be true that, in the language of their counsel, "they owed him no duty" in the premises, they were, nevertheless, in such a position in regard to him, that they cannot, in this transaction, be regarded as ordinary purchasers would be, who had had no part, innocently or otherwise, in misleading, or aiding in misleading him. Without designing to do so, they did mislead him. It is not surprising that the petitioner should have relied on Wetzler's statement as to the time of sale. It appears, by the way, that the latter was not at the sale on the 9th, but was at the sheriff's office to attend to it on the 15th. There can be no question of the power of the court to set aside sheriffs' sales under the process of this court, where there is a gross inadequacy of price, and the party whose interest is injuriously affected by the sale has been prevented, by mistake or misapprehension, from attending it. Seaman v. Riggins, 1 Green's Ch. 214; Howell v. Hester, 3 Green's Ch. 266; Hazard v. Hodges, 2 C. E. Green 123; Kloepping v. Stellmacher, 6 C. E. Green 328. The price was inadequate. The petitioner swears that Flemming and Roll agreed to pay him about $5500 for the property. But this was subject to assessments amounting to $985, making the price $4515. They bought it at the sheriff's sale for $2600. It appears to have been worth about $4500. It, therefore, was sold to Flemming and Roll for a little over half its value. They having contributed (innocently, no doubt) to the petitioner's mistake, ought not to be permitted to take advantage of it. When they bid on the property, they had reason to believe that the petitioner's absence from the sale was due to the communication The court will not, they had made to him on the subject. where property is sold under its process for a grossly inadequate price, permit one who, however innocently and unintentionally, contributes to the mistake of the owner, by which Conrad v. Mullison and Conrad. he is misled as to the time of sale, to take advantage of the mistake by a voluntary purchase of the property at the sale. This case is within the ruling of Chanceller Kent, in Williamson v. Dale, 3 Johns. Ch. 290. The sheriff's sale will be set aside. Inasmuch as Wetzler's demand is under the petitioner's control, no further directions will probably be necessary. The position of Flemming and Roll, before the court, is not such as to entitle them to its consideration in awarding costs. Having obtained, as they supposed, an advantage over the petitioner, they unfairly sought to retain it, as the means of coercing him to serve their interests. Each party will pay their own costs. CONRAD and others vs. MULLISON and CONRAD. 1. A mortgagee holding a first mortgage, agreed with the mortgagor that he would look entirely to the mortgage for the payment of the debt, and would hold the bond, with warrant of attorney to confess judgment, as evidence of the debt only, but, in violation of his agreement, he caused judgment to be entered against the mortgagor on the bond, and collected the full amount of the debt. A later owner of the premises gave a second mortgage. The master, under the reference in a suit to foreclose the second mortgage, reported the first paid off, and the second the only encumbrance. The former owner only learned of the suit after entry of the final decree. On his petition, setting forth the foregoing (among other) facts, and claiming to be subrogated to the rights of the first mortgagee under his mortgage (held by the petitioner uncancelled), the enrollment was ordered to be vacated, the final decree opened, and the petitioner made a party defendant in respect of the claim of subrogation, with leave to answer and file a cross-bill. 2. The sheriff will not be permitted to proceed to sale under the execution, and the hearing of the petitioner's claim be deferred and determined in disposing of the proceeds of sale, under the act of March 17th, 1870. The complainants' right to priority is disputed. 3. In a case like this, the practice does not require that the petitioner submit his proposed answer or bill to the court that it may judge of it, before he is permitted to file it. All that can be reasonably required is, Conrad v. Mullison and Conrad. that the applicant shall, by petition, specifically state such facts, duly verified, as will satisfy the court that he has a bona fide claim to such an interest as entitles him to be made a party to the suit. 4. That the petitioner's claim to an interest in the cause is not only denied in the suit, but has been passed upon adversely to him in litigations between him and the holder of such first mortgage in another state, upon the same subject matter, is a point going to the merits of the controversy, which the court will not undertake to determine on this application. On petition of Osborn Conrad, that the final decree be opened, and he made a party defendant, with leave to answer or file a cross-bill. Mr. A. Browning, for petitioner. Mr. P. L. Voorhees, for complainants, contra. THE CHANCELLOR. The bill is filed for the foreclosure and sale of certain mortgaged premises-a farm in Camden county. It states that the defendant, Mullison, September 5th, 1862, gave to John Conrad (since deceased), Henry Conrad, Jacob Conrad, Benjamin R. Conrad (also since deceased), and Sarah Yerkes, his bond, secured by mortgage on the farm, for $5000, and interest; that previously, the petitioner, Osborn Conrad, being the owner in fee of the property, executed a mortgage thereon to "one Henry Conrad" (really the complainant of that name), to secure the payment of $4000 and interest, the priority of which latter mortgage is admitted, and it is treated as a valid encumbrance, the complainant, Henry Conrad, being incongruously made a defendant, as the holder of it. The bill having been taken as confessed, there was an order of reference. The master reported that the first mortgage had been paid off, and that the second was the only encumbrance, and that there was due on it $6535. A final decree was entered, adjudging accordingly. The sale under |