VEND. EXPONAS for the sale of defendant's land: returned "Land sold to Benjamin Benson for forty dollars."
On affidavit of defendant filed, rule to show cause why the sale should not be set aside, 1st. For want of full notice of the sale; and 2d. Because the property was sacrificed, by being sold at an unusual place.
The proof was that the land was situated within a mile and a half of Smyrna; and, if it had been sold at that place, would have broughtfour hundred dollars, which was its fair cash value. It was an undivided interest; and the tenant, who was also guardian of the person interested in the farm, had no notice of the sale until the morning of the day of sale, when he immediately rode to Smyrna, intending to be a bidder. It was also in proof, that it had been customary for sheriffs to sell lands lying near Smyrna at that place. Mere inadequacy of price is no reason for setting aside a sale; neither does it appear that there was any defect in the setting up notices of this sale; but the important objection to it is, that it was made at an unusual place, far from the premises, and from the place where a fair price would most probably have been obtained *Page 24 for the land. This was likely to mislead purchasers who might only hear of the sale without seeing the advertisements; and did in fact mislead the person who was most interested in becoming a bidder to secure the property for the other owners, or to prevent its sacrifice.
In Kent and Sussex, the law gives the sheriff a discretion as to the place of sale, but this discretion must be properly exercised in reference to the great objects of the sale, to wit: notice to all persons, and the procuring a full and fair price. In New Castle county, the law makes it the duty of the sheriff to make all sales of real estate either on the premises, or at some public house near the same; which shows the solicitude of the Legislature on this subject, and the general impression that a sale near the premises would, in most cases, be most likely to prove the best. Circumstances might exist to render the county town the most suitable place of sale; and, in such cases, the sheriff ought to make sale at that place; but in the present case, we think a sale at Smyrna, where lands in that neighborhood are usually sold, would have been more judicious, and that the very great sacrifice made on the property, was owing to the sale being made in Dover.
Sale set aside at the defendant's costs.