Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-08-25
Eighth Judicial District.

E10HtH ONUtct0L DtSCTtcG.
State of Minnesota, LIE Sueur County-District
Court, Eighth Distr.ct-Cochran b Ooegrove Vi.
A. P. Hasey.
This Is motion In said action by said Halsey for
order requiring the receiver herein to pay to him
the five hundred dollars which h3 paid to said re-
ceiver part of his bid, upon which the real es-
tate was struck off to him as hereinafter stated.
The record shows that the Judgment herein (which
defendant procured to be entered wi bout notice
decreed the sale of the real estate of the rm and
that according to that judgment and decree the re-
celver advertised 1t for sale; that at the sale de-
PENDANT appeared and bid upon this (hoteD property
the Of S6U0 that the receiver. in the exercise
of proper discretion, required him to make de-
posit of $500 account of that bid aud defendant
paid that upon his said bid, and as part Of the
same; that tn g sale was afterwards Confirmed BY
the court and the receiver thereupon made and ex-
ecuted proper conveyance to defendant of said real
estate, and rendered the to him aud demanded
payment of the balance Of said purchase price or
bid, to-wit, S4,lO0, and that defendant then and
| there refused to accept said deed and pay said
100. Subseque to thsse proceedings and acts,
aud after this action had been to the supreme court
upon appeal, and the said matters involved therein
had been disposed of, said receiver applied to this
court for der requiring sad defendant to show
cause why he should not be declared and
adjudged to have mads default In the
payment of the said sum OF $4,lOo.
and why the said sum Of $500 earnest money
should not be declared and adj judged forfeited by
reason of said default and why said receiver should
not be ordered and directed to resell said real prop
be proper in the premises; and that such order to
show cause was made returnabe before this court
at chambers; and that the same was heard before me
on the oath day Of July, 1873, A. w. Bangs, Esq sp-
airing for said receiver, and As Ais then appear
ing for said defendant.
That upon the hearing Of said order at chambers
the 24th day of July 1878, said Allis Alis for
and in behalf OF said defendant consented that said
real property should be resold by said receiver as
directed by said Judgment but objected to said $500
being adjudged forfeited, and that thereupon this
court made the order bearing date July Oath, 1873,
copy of which hereto annexed and that thereafter
the said receiver sold said real property for the sum
of So $1,000, that being the highest sum he could
The defendant claims that because by said last
mentioned order, said receiver was directed to sell
said property Sin the same manner rs If no such
sale of the had heretofore been made that said
first ale in all respects rescinded BY the court,
aud that therefore defendant Is entitled to return
of his $780, In this defendant is in error. The
der in that respect simply, directed the receiver as
tn tue "m ,uuer in which he should make that sale,
and expressly reserved the question of the forfeit
of that $780, only denying at that time the mo-
ton 10 declare 1t forfeited.
1t was also agreed that the second sale should have
been made at the risk of defendant first purchaser,
etc. is only necessary to say, in ply to this that
the above mentioned proceeding under the said order
to show a substantial, not literal, COM
pance with the rule in such cases, as laid down in
the cited by defendants counsel upon this mo-
ton. The principal case being las understand
Ing quotation from that case and which take from
that BRIEF is certainly sound in principle and con-
elusive against defendant upon this motion:
"The court, it is true. will sometimes, when the
purchaser is party to the suit, and entitled to
share Of the proceeds of the SALE reserve the ques
ton by whom the costs and expenses Of the resale
the costs of the application and the loss and def
ency to be borne and, however, 1t might have
been In this particular case he only objection being
to the terms of resale) hold 1t fatal to this
claim that Hill, previous to the making OF the order
of resale, had never been called upon to complete his
snow cause
for not doiug So"
Undoubtedly 1t would have been fatal to receivers
claim to this money if defendant had not before the
order for resale made, been allowed an oppor-
tunity to complete his purchase or show cause Tor
not doing SO Here he auGs allowed that opportu.
nifty to complete his purchase or show cause 1RGt
was the only object purpose aud effect OF the said
order to show cause which was served upon him,
and In response to which he appeared by his counsel
above sated upon that hearing that $500 was not
adjudged forfeited for the sole reason that that
should not in equity be done until 1t was seen to
what extent If any, the estate was the loser by his
failure to pay the amount of his bid. This is GER
tainly the correct practice, even under the author-
ties cited by defendants counsel
II the order for resale had been made &c pGrte,
and thus without giving the defendant an oppor uni
ty to be heard, or to complete his purchase or show
cause Why the property should not be resOld the at
horties cited by defendants counsel would be di-
rectly Il point, but in this case the defendant had
that very notice and opportunity to complete his pur
chase or chow cause why he should not, and his mis-
fortune Ia that he did nether See Ddniets' ca pr.
1,46l.
NOW as to the defendants right to return Of
that five hundred dollars, upon any other legal or
equitable ground His petition presents tn. qnestio
sdnarely whether. &c eQ10 ct bono, ne 1s emu
tie to be repaid this $500.
In the first place. defendant offers no valid excuse
for his failure TO pay the balance OF Dis DID. IL
seems that he bid relying upon his ultimately sue
ceeding In recovering the Judgment which tue reeree
who first tried this found in his favor out which
had then been set aside, and new tr1a as 70 mat
granted his reliance upon that being altogether upon
bis success In his appeal to the supreme court from
the order granting that new trial. When he chose 10
take such risk as that he must not expect others TO
bear his loss In Of his failure, which was the
case upon that appeal.
A,ain: It is established beyond controversy tnat
when said defendant made said bid. another party,
who was good and responsible, aud
ready and wiling to pay for the same,
| bid for the same property the sam
of four Thousand, five hundred aud sevenfy-hve
dollars: and that but for the said bid OF this defend.
anr 1t would have been struck of and sold to said
party 1t IT, therefore, clear that the estate OF these
parties represented by said receiver has been dam
aged by said defendants failure to make his bid
good in the sum of nine hundred and twenty-five
dollars.
| Upon no principle can come to the conclusion
that in Justice aud honesty between him and the
other members of the firm and their creditors, ts de-
PENDANT entitled to have this money returned to
him.
"a party abandoning his contract without justin