Schaefer v. O'Brien

Alvey, J., delivered the opinion of the Court. There are two appeals in this record ; one hy Rost, the purchaser at the first sale, and the other hy Mrs Schaefer, the mortgagor ; hoth taken from the order of the 1st of October, 1877, overruling all exceptions to the re-sale of the mortgaged premises, and finally ratifying that sale as reported to William A. Hampson. The proceedings upon which the order appealed from is based are so radically defective, that they cannot for a moment be sustained. The original sale was made to Rost on the 24th of July, 1877, for $6700, and was duly reported hy the trustee on the day after.

On the same day of reporting the sale, the trustee, by petition, alleged the failure of the purchaser to comply with the terms of sale; whereupon an order for re-sale at the risk of the purchaser was forthwith passed, without giving the purchaser notice, or affording him in any way the slightest opportunity to he heard. The trustee then proceeded to execute the order of re-sale, and on the 21st of August, 1877, sold the property to William A. Hampson for $6650. Rost, the first purchaser, filed a petition asking that the order for re-sale be rescinded, and that the first sale be ratified, and in the petition he alleges himself willing and ready to comply with the terms of sale, as prescribed by the decree. He also filed exceptions to the sale made to Hampson, and urged as grounds for setting aside such sale, his rights as purchaser under the first sale.

Mrs. Schaefer, the mortgagor, also filed exceptions to the sale to Hampson. The first sale having been reported by the trustee, it is very clear that no order affecting the rights of the purchaser should have been passed without notice and an oppor ²⁵⁶ tunity afforded of showing cause against such order. But the order for the re-sale was clearly erroneous and without warrant in law, as it was not only passed ex parte and without notice, but the re-sale was ordered to be made at the risk of the purchaser This could not be done until the first sale was ratified. The party must be accepted as the purchaser and the sale ratified, before he can be proceeded against for the enforcement of the contract of purchase.

The summary proceeding against a