de Baun v. Brand

• Decision Date: 10 December 1898
• Citation: 41 A. 958,61 N.J.L. 624
• Parties: DE BAUN v. BRAND.
• Court: New Jersey Supreme Court

41 A. 958

61 N.J.L. 624

DE BAUN

v. BRAND.

Court of Errors and Appeals of New Jersey.

Dec. 10, 1898.

(Syllabus by the Court.)

Error to circuit court, Bergen county; before Justice Dixon.

Action by Hester E De Baun against John T. Brand. From a Judgment of nonsuit, plaintiff brings error. Reversed.

L. M. Ward, for plaintiff in error.

W. W. Watson, for defendant in error.

GARRISON, J. The question to be decided is whether a person who has an existing interest in property to be sold at a public sale may, for the protection of such interest, lawfully agree not to bid at the sale.

The writ of error in this case brings up a Judgment of nonsuit entered in the Bergen circuit in conformity to the advisory opinion of the supreme court rendered upon a case certified.

The report of the advisory opinion of the supreme court (60 N. J. Law, 283, 37 Atl. 726) is prefaced by the statement of facts certified to that court, and shows that the question reserved by Mr. Justice Dixon at the trial was whether the contract relied upon by the plaintiff was against public policy. The decision of the supreme court was that the agreement was void, and that the plaintiff should be nonsuited. This was done, and error is now assigned upon the advisory opinion, under section 249 of the practice act.

The facts in evidence at the close of the plaintiff's case were these: The defendant and the plaintiff were brother and sister. The property to be sold was a farm of which their father had died seised. By the father's will, legacies to the plaintiff and to Edward, another brother, were charged on the land, as also was an annuity to the testator's widow. Of this will the defendant and Edward were the executors. They were also residuary legatees. The sale in question was made under a decree obtained by the widow to satisfy the arrearages of her annuity. Under these circumstances the plaintiff agreed to let the defendant buy at the sale upon his agreement that he would pay off all the legacies.

The supreme court regarded these facts as showing "an agreement having for its object the suppression of competition in bidding at a public sale," and under the general rule of public policy held that the circuit court should not lend itself to the enforcement of an agreement of this nature. Hence it advised that the plaintiff be nonsuited.

The certified "case" undoubtedly showed an agreement that restricted competition at a public sale, but it likewise showed that the plaintiff, when she made the agreement, had an existing interest in the property, which it was her right to look after and protect at the sale. Her agreement therefore may have had for its object the protection of her interest, and not the suppression of competition. A jury might so have found. It was assumed by the supreme court that the agree ment was for the illicit object, but a motion to nonsuit must deal with that inference from the facts that is most favorable to the plaintiff. For the purposes of the case before us the agreement must be regarded as one made by the plaintiff with the object of protecting her interest in the land, but with the effect of restricting competition at the sale. The question that then arises is whether such an agreement is within the rule of public policy applied to it below. As this phase of the case is not discussed at all in the advisory opinion, and is not dealt with in a satisfactory way in any of the cases cited, it can be best placed on its proper footing by a brief consideration of the spirit and reason of the general rule of public policy that has been invoked.

The class of sales to which the rule of public policy in question attaches includes execution sales and judicial sales generally, as well as tax sales, and all others in which, in the administration of the law or of government, the property of a private owner...