Schaeffer v. Bond

Stone, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court of Baltimore City, setting aside a sale made by a mortgagee under a power of sale. The Court below, in an able and exhaustive opinion, decided that the purchaser should be relieved from his bid, under the facts in the case, and upon the facts disclosed by the record we find no error in its conclusion. The attorney for the appellee, Bond, attended the sale, bid for the property, and it was struck off to him as purchaser.

Hughes, the attorney of Bond, testifies that “before the sale was begun the auctioneer made the statement that the property would be sold free and clear of all incumbrances, and that the purchaser would receive a good title thereto;" and he further testifies that he ⁴⁸² would not have paid the price he did for the property if it had been sold subject to liens. There can be no doubt, that if the appellee purchased this property under a mistake induced by the statement of the auctioneer who was conducting the. sale for the appellant, that the purchaser will not be held to his bid. It would be a great wrong to hold a purchaser to a strict compliance who became such through a mistake, and in ignorance of his liabilities, and more especially when such mistake arose from the statements made at the sale by the auctioneer. Bolgiano vs. Cooke, 19 Md., 375 ; Hunting vs. Walter, 33 Md., 60 .

We think the statements alleged to have been made by the auctioneer on the day of sale are substantially proven, and, unless there is something else in the case to prevent it, are sufficient to set aside this sale. The appellant contends that the sale should be ratified because the mortgagee offered to retain enough of the purchase money to pay off the liens; and cites the case of Speed vs. Smith, 4 Md. Ch. Dec., 299, in support of his contention- But that case does not sustain the position of the appellant, for the trustee in that case gave notice at the sale that there were liens, and, that enough of the purchase money would be retained to pay them off. The appellant also contends that the appellee knew of the existence of these liens (mechanics’ liens) that were upon the houses, and moreover, that he was security uj)on a bond given to the