Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-08-25
Eighth J,.1icta. Dissrict.
E5VHtN JNdFCtdt UISbFtct'
State OF Minnesota Le Sueur County-District
Court, Eighth District Cochran h Cosgroye We.
D tfgfdav

State of Minnesota, Lie Sueur Oounty-District
Court, Eighth District Cochran h Cosgrove Vi.
A. P. HSisey.
This motion In said action by said Halsey, for
tue five hundred dollars which he paid to said re-
cever as part of hts bid, upon which the real es-
tate struck Off TO him Us hereinafter stated
The record shows that the Judgment herein (which
defendant procured to be entered without notice]
decreed the sale Of the real estate of the Arm, and
that according to that judgment and decree the re-
culver advertised 1t for sale; that ut the sale de-
PENDANT appeared and bid upon this (hoteD property
the Of $4,000 that the receiver In the exercise
of proper discretion, required him to make o de-
post OF $500 account Of that bid, and defendant
paid that upon his said bid, and rs part Of the
same; that this 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 same to him aud demanded
payment of tho balance OF said purchase price or
bid, to-wit, S4,1OO, and that defendant thon and
there refused to accept said deed and pay said
Si,100. Subseque4t to these proceedings aud 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 spilled to this
court for an order requiring said defendant to show
cause why he should not be declared and
payment OF the said sum OF $4,000,
and why the aaid 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
perty aud for such other and further relief as might
be proper In the premises; and that such order to
show cause WAS made returpable before this court
at chambers and that the same was heard before mo
the oath day Of July, 1878, A. W. Bangs, Esq, np-
pearing for said receiver and As Als then appear
ing for said defendant.
That upon the hearing Of said order at chambers
on the oath day of July. 1878, said Alis Als for
aud 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 Is hereto annexed and that thereafter
the said receiver sold said real property for the eum
Of S3,6i0.00, that being tho highest sum he could
have bid thereon.
Tho defendant claims that because by said last
mentioned order, said receiver was directed to sell
said property "ln the same manner Us IL no such
sale Of the had heretofore been made" that said
first sale In all respects re5cinded by the court
and that therefore defendant is entitled to a return
Of his $500. In this defendant s in error. The Or
der In that respect simply directed the receiver as
to the manner' in which he should make that sale,
and 1t expressly reserved the question OF the forfeit
ure Of that $500, only denying at that time the mo-
ton 10 declare IL forfeited.
1t also agreed that the second sale should have
been made at the risk of defendant as first purchaser
etc 1t is only necessary to say, in reply to this that
the above mentioned proceeding under the said order
to show cause q substantial, II not literal, COM
plisnce with the rule In such cases, as laid down In
tho case cited by defendants counsel upon this mo-
ton. The principal case being las understand
ing quotation from that case Sc and which take from
that BRIEF is certainly sound In principle and con-
elusive against defendant upon this motions:
"The court, 1t 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. Rnc the loss and deh-
been in this particular case he only objection being
a. to the terms Of resale) hold 1t fatal to this
claim that HILL previous to the making Of the order
of resale had been called upon to complete his
s,,Ia tIo tn -
Undoubtedly il would have been fatal to receivers
claim to this money II defendant had not, before the
order for resale made, been allowed an oppor-
trlnity TO complete his purchase or show cause for
not doing so. Here he tCds allowed that opportu-
nifty to complete his purchase or show cause. Thdt
was the only object, purpose aud effect OF the said
order TO show cause which was served upon him,
and u response TO which he appeared by his counsel
as above stated 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, II any the estate was the loser by his
failure to pay the amount Of his bid This is GER
tainy the correct practice, even under the author
ties cited by defendants counsel.
II the order for resale had been made &c parts
and thus without giving the defendant an opporuni-
ty TO be heard to complete his purchase or show
why the property should not be resod the ai-
thorltes cited by defendants counsel would be d.
recty in point but In this case the defendant had
that very notice and opportunity to complete his pur-
chase or chow why he should not, and his mis-
fortune is that he did neither. See Daniels ca pr.
1851.
NOW as to the defendants right TO return OF
that FIVE hundred dollars, upon any other legal or
equitable ground His petition presents the question
squarely to whether, sc GeQu0 d oono, ne IL enH-
tied to be repaid this $500.
In the arst place. defendant offers no valid excuse
for his failure to pay the balance Of his bid. II
cseding In recovering the Judgment which the referee
VIII rst tried this case found In his favor but which
had than been set aside, and snew trial g to that