The defendant claims part of the property as mortgagee, and the residue by virtue of a sale or settlement with the bankrupt. The case finds there was no sale. There was evidence tending to show a conversion by the defendant, and no demand was necessary. The contract between Winn and the defendant was not a hiring of the farm on shares or at the halves, whereby the whole or a portion of the crops was reserved in lieu of rent. Winn was the owner of the crops, and his abandonment of the farm did not divest his title, or transfer it to the defendant. For any damages the defendant sustained by reason of Winn's breach of his contract, he could prove his claim in bankruptcy. He cannot set up such claim in defence of this action, nor is the plaintiff, as assignee, bound to assume and perform the conditions of the lease. Streeter v. Sumner, 31 N.H. 542. The defendant received $237.50 from the sale of the horses, which exceeded the amount of the debt secured by his mortgage. The formal sale at auction, for the nominal sum of $150, the defendant being the purchaser, was not a sale made in good faith. It was understood to be a mere formality, necessary to enable the defendant to give Fay a title to the horses, which he had previously bargained for at the price of $237.50, part of which had already been paid. The case finds that Fay stated publicly at the sale that he had bought the horses of the defendant, and consequently no one but the defendant made a bid for them. By the previous agreement with Fay, the defendant prevented Fay from bidding at the auction, and Fay, by his announcement of it, prevented all others from bidding. Such a sale cannot be upheld. It was in effect a sale of the horses to Fay for $237.50, the defendant acting as his agent in making the bid. The parties so understood it, and the horses were delivered to Fay immediately after the auction, at that price. The defendant having received from the sale of the horses a sum more than sufficient to discharge the mortgage debt and costs, the subsequent sale of the other property was a conversion, and the plaintiff is entitled to *Page 215 recover the sum for which it was sold, with interest. Thompson v. Currier,24 N.H. 237, 239; Leighton v. Shapley, 8 N.H. 359; Mathews v. Fisk, 64 Me. 101, 107; Hutchins v. King, 1 Wall. 53; Charter v. Stevens, 3 Denio 33.
Judgment for the plaintiff
SMITH, J., did not sit: the others concurred.