[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 157 The sale of the defendants' property was not void because it took place on the day of the charter election in the city of New York. The statute provides that no court shall be opened, or transact any business, in any city or town, on the day of elections, for other than town or militia officers. (1 Rev. Stat. [5th ed.] 148, §§ 4 and 5.)
A judicial sale, although conducted by one of the officers of the court, and under its direction, is not the business of acourt, within the meaning of this statute. The object of the law referred to was, undoubtedly, to remove all obstacles which might necessarily interfere with the free exercise of the elective franchise. If the ordinary business of the courts were permitted, on election days, the attendance of witnesses and jurors could be compelled by compulsory process, and, in that way, they could be forcibly kept from the polls. It was to avoid such an evil that the statute was passed. A judicial sale of valuable property on an election day, presenting a tempting opportunity for gain, might induce sordid men to forego the privileges of electors, in order to promote their private interests; but their action would be voluntary, and freedom of action was all the law intended to secure.
The propriety of a forced judicial sale of a large and valuable property on an election day, when public attention would necessarily to a great extent be turned to other objects, after a written notice from the person who was to be most affected by it, that he would consider it "unjust and oppressive," was at least very questionable, and although not of itself, perhaps, sufficient to warrant the court in setting aside the sale, yet, in connection with the other facts disclosed *Page 158 in this case, cannot fail to create in the mind an influence unfavorable to the plaintiffs.
The property which was the subject of this sale consisted of eight lots, situate on the corner of Fifth avenue and Fifty-ninth street, in New York city, at one of the entrances to the Central park. The order in which these lots should be sold, was considered by the defendant a matter of interest to him, and consequently, on the day of sale, he made a written request that the corner lot, which was conceded to be the most valuable, should be sold first. This request was made with a view to cause the property to bring the largest price, and was therefore a proper and reasonable one. It was not, however, acceded to, and the lots were sold in a different order. I have examined the papers in this case with care, to see what reason was assigned, or could have existed, for this course, and I have been unable to find any that is satisfactory. The referee who sold the property states in his affidavit that, "in the exercise of his discretion," he caused the premises to be sold in parcels, and in the order adopted at the sale.
That the referee acted in good faith, so far as his action is concerned, his well known character for integrity leaves no room to doubt; but no reason for believing that the sale of the corner lot first, as requested, would have been detrimental to the sale, having been furnished by the affidavits or suggested on the argument, I cannot but think that the referee's discretion was exercised unwisely. That the defendant's request was made in good faith, and founded on the belief that, if granted, it would have increased the amount which the whole property would have brought, cannot be doubted; and, in that opinion, he is sustained by six other persons, who are experienced in the sale of property of a like character in the city of New York.
The case, therefore, resolves itself into just this: That, while the sale of the corner lot first, could do no harm, there was good reason to believe that it would result in a benefit. Under such circumstances, it is difficult to arrive at any other conclusion than that the defendant was unfairly dealt with. *Page 159 Whatever chance there was, however slight, that the order of sale he requested should be adopted, would prove beneficial, he was entitled to it, and to deprive him of it was a constructive fraud.
I have not overlooked the affidavits on the part of the plaintiffs, expressing the opinion that the property would have brought no more than it did if the corner lot had been sold first; yet I can see no good reason for not trying, at the least, a harmless experiment to gratify a reasonable request of a failing and unfortunate debtor, which he thought would result to his advantage. I do not agree with the learned counsel for the motion, that the defendant had the right to determine the order of sale, and the authorities quoted do not sustain that position; but, in the absence of all directions by the court, the defendant has a right to be heard on the subject, his suggestions considered, and, if for the best, followed.
But, in the light of the other facts in this case, it is difficult to believe that the refusal to accede to this request was the result of indifference or mere caprice. The plaintiffs bought the whole of the property at the sale. Their right to do so, of course, is not disputed.
If it were fairly done, without any undue advantage, a court of equity would not interfere with the sale. But, besides matters already considered, there are facts disclosed in the papers which give rise to serious doubts as to the entire fairness of the plaintiffs' conduct at the sale.
From the whole evidence, it satisfactorily appears that the plaintiffs manifested a desire before the sale to purchase the whole of the property, and resorted to the means necessary to accomplish their object.
Raynor, who sustained intimate friendly and business relations with the plaintiffs, and who acknowledged that he would have the selling of the property, as broker, in case the plaintiffs should purchase it, said to a bidder, at the sale, that he could purchase the property, in one parcel, after the sale upon better terms than he could get it then by bidding. Raynor also testifies that he made this communication at the request of one of the plaintiffs. *Page 160
That this had a tendency to prevent competition at the sale can hardly be denied, and, whether this effect was designed or not, it is equally fatal to the validity of the sale.
There is other evidence tending to show that the sale was chilled by the course pursued by the plaintiffs; but it is unnecessary to pursue the subject further.
The sale having been made, against the defendant's remonstrance, on a day most unfavorable to a large gathering, and the lots having been sold in an order which induces a reasonable belief that it was detrimental to the defendant's interests, and under circumstances which give rise to apprehensions that free competition was interfered with, it ought not to stand.
Whilst the law secures to the creditor his just demand, and sequestrates the property of the debtor to satisfy it, it still sedulously guards his interests in all the various steps taken leading to a sale of his property. The unfortunate debtor is not beneath its protection. It will not tolerate the slightest undue advantage over him, even by pursuing the strict forms of the law, or positive rules. (Story's Eq. Jur. § 239.)
Occupying the position of advantage, it behooved the plaintiffs to pursue their remedy with scrupulous care, lest they should inflict an injury on one who was comparatively powerless.
A court of equity justly scrutinizes the conduct of a party, placed by the law in a position where he possesses the power to sacrifice the interests of another in a manner which may defy detection, and stands ready to afford relief on very slight evidences of unfair dealing, whether it is made necessary by moral turpitude, or only by a mistaken estimate of others' rights.
I feel quite convinced that sufficient reasons exist for setting aside this sale, and that justice will be subserved by doing so, for it cannot result in any loss to the plaintiffs.
The rights of third parties do not intervene, and the plaintiffs have a lien for the taxes and assessments they have paid. (Kortright v. Cady, 23 Barb. 490.) *Page 161
A resale will probably result in satisfying the judgment and all the outlays of the plaintiffs, and that is all they can reasonably ask. If the parties fail to agree upon the order in which the property shall be sold, either party can apply to the court for instructions to the referee. (Collier v. Whipple, 13 Wend. 229.)
The orders of the General and Special Terms should be reversed, the sale set aside, and a resale ordered.
All concur.
Order reversed, sale set aside, and resale ordered. *Page 162