This case arises on a rule taken against the tutor of Wm. B. Burhe to enforce his compliance with an adjudication at auction of certain real estate.
We are of opinion that the defendant cannot be compelled to complete the sale in conformity with the procs verbal of the auctioneer, w'hich is made the basis of the rule, because it varies both from the advertisement and the orders of sale.
It is said that the change w'hich constitutes this variance was announced by the auctioneer at the stand, and that Burhe understood it. Without deciding the question whether parol evidence was admissible to show what declarations W'cre made at the sale by the auctioneer, and what conversations took place, we think it sufficient to say that the testimony of the auctioneer as to w'hat he ob*3served to the audience is at variance with his proces verbal, and both are at variance with the advertisement; and the conclusion is forced upon our mind, that the matter was not understood either by the auctioneer himself or the audience, in consequence of the obscurity of the advertisement.
The only mode of doing justice to all parties, the creditors and the purchasers, is to set aside the adjudication as irregularly made.
There is a circumstance connected with the mortgage debt which seems to have been overlooked in the application for the order of sale, in the order, and in the advertisement; and that is, that two interest notes were due, and had become under the contract a cash capital bearing eight per cent, interest. Whether this stipulation as to compound interest was or was not unlawful, we express no opinion. But at all events, two interest notes were due before the sale, so that whatever equity there might be in treating the use of the property by the purchaser after his purchase, as an equivalent for the unmatured interest notes, there certainly was none in asking him to pay interest which had matured before the sale without giving him credit for it on the amount of his bid. We would also add that the property was mortgaged to the State for forty-three interest notes of $155 35 each, and the proces verbal speaks of forty-two of that denomination to be assumed, without specifying which they are.
We recommend the granting of a new order of sale by the Court below, providing specifically for the terms of the sale in this complicated matter, so that the advertisements may inform bidders clearly what will be their liability.
It is therefore ordered that the judgment of the District Court be reversed, and that this adjudication to G. BurTce, tutor, be annulled, the costs of the rule in both cases to be paid by the insolvent estate.