Page v. Kress

• Decision Date: 11 April 1890
• Court: Michigan Supreme Court
• Parties: PAGE v. KRESS et al.

44 N.W. 1052

80 Mich. 85

PAGE v. KRESS et al.

Supreme Court of Michigan

April 11, 1890

Appeal from circuit court, Jackson county, in chancery; ERASTUS PECK, Judge.

Bill to foreclose mortgage, by Charles C. Page against Nicholas Kress and Arena Kress, his wife. A decree of foreclosure was granted, and the property was sold. The sale was set aside on petition, and a resale ordered. William Stimer and Wyman Stimer, purchasers, John Powers, a mortgagee, and Arena Kress, appeal.

J. C. & C. B. Wood, for complainant and Nicholas Kress, appellees. Dwight D. Root, for appellants.

CHAMPLIN C.J.

At a sale, made pursuant to a decree of foreclosure of a mortgage held on the 5th day of March, 1888, there were two bidders. One was William Stimer, bidding in his own behalf; and the other was C. B. Wood, who was bidding in behalf of Catherine Vedder. Wood bid $885, and afterwards Stimer bid $890; and the premises were struck off to him and his brother, Wyman Stimer, and the commissioner's deed was duly executed to them. Several by-standers have made affidavit that, when Wood bid $885, Stimer said: "That is enough. You can have it,"-and that the commissioner then said "Sold." But Mr. Wood, in his affidavit, does not say that the commissioner announced it as sold, but inquired for whom he was bidding, and made a memorandum of it. The commissioner makes affidavit that he did not strike off the premises to Wood, but says he made a memorandum of his bid that Wood immediately left and went back into the court-room. It appears that he was in attendance upon the court, and had obtained leave of absence for a few minutes to attend this sale. The commissioner says that Wood and Harry Allen, who was also present at the sale, appeared to be acting in concert, and, before he announced the biddings closed, he inquired of Allen if he represented Wood, as, if he did not he wished to send for Wood; that he understood Allen to say that he represented Wood, and that he would not raise Stimer's bid, which had been made after Wood left, of $890,-and he therefore struck off the premises to Stimer. Allen denies stating that he represented Wood, and states that he told the commissioner that he did not represent him; but he has made another affidavit in which he states that he was then and there ready to pay the money on Wood's bid, which shows that he had some relation to the real bidder.

There was nothing which occurred at the sale which would induce a court of equity to set it aside. The premises were finally struck off to Stimer as the highest bidder. More than this the Wood who made the bid was one of the members of the firm of J. C. &. C. B. Wood, who were the solicitors for complainant, and who, on the next day after the sale to Stimer, entered the usual order nisi to confirm the sale. This order was entered on the 6th of March, 1888. On the 13th of March, Catherine Vedder filed a petition to set aside the sale, and for a resale, saying that she would have bidden $100 or $200 more if the premises had not been struck off in the absence of Mr. Wood. It must be remembered that in the mean time, and on the day of sale, Stimer had paid to the commissioner the amount of his bid, and it had been disbursed in accordance with the decree. To enable him to pay the purchase money, he had mortgaged the premises purchased by him at the sale, for $500, to one Powers, and had raised the balance by mortgage or sale of his personal property. The petition of Catherine Vedder was supported by several affidavits,...