it is illegal for persons intending to bid at a public sale to combine and agree not to bid against each other does not apply to a case where several persons, no one of whom would be able or willing to purchase so large or valuable a property as that offered, but who desire different parts of it, make an agreement to purchase it jointly, or by one acting for all, and afterwards to divide it among them, since such a combination is calculated rather to enhance the price than to depress it.72 An illustration given in a case in New Jersey is as follows: "If two country merchants in the same village should agree that one should attend an auction sale of flour in a distant city and should purchase 200 barrels, to be divided between them, it would not be illegal, though the effect might be that, instead of each bidding in competition with the other for 100 barrels, the purchase would be made with less competition and at a lower price. Or if, at an auction sale of sugars by the hogshead, two persons, neither of whom wanted to purchase or would purchase a whole cask, were to agree that one should purchase for the common benefit, such arrangement is not against public policy, for instead of preventing competition, it brings in a bidder who would not otherwise be one." And it has been held that, although an agreement is intended to chill bidding or prevent competition at a judicial sale, yet it will not vitiate the sale if all the parties in interest are parties to the agreement, as, for instance, a mortgagee and all the heirs of the deceased mortgagor. "Where all parties interested unite in the contract or subsequently sanction it in the promotion of their interests, the rule has no application, for the obvious reason that there is nobody left to be defrauded.” 74

1973

§ 450. Employment of Puffers.-A puffer (sometimes called a "by-bidder," "sham bidder," "capper," or "decoy

72 National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Holmes v. Holmes, 3 Rich. Eq. (S. C.) 61; McMinn's Legatees v. Phipps, 3 Sneed (Tenn.) 196; Roudabush v. Miller, 32 Grat. (Va.) 454; Smith v. Ullman, 58 Md. 183, 42 Am. Rep. 329; Smith v. Greenlee, 13 N. C. 126, 18 Am. Dec. 564.

73 National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159. 74 Fairy v. Kennedy, 68 S. C. 250, 47 S. E. 138.

75

76

duck") is a person who, without having any intention to purchase, is employed by the vendor at a sale by auction, or by creditors or others interested in a judicial sale, to raise the price by fictitious bids, thereby increasing competition between the bidders, while he himself is secured. from risk by a secret understanding with his employer that he shall not be bound by his bid. The employment of a puffer is a fraud on the real bidders which will relieve the highest bidder from any obligation to complete his contract. And a contract for compensation for securing bybidders at an auction is illegal as being against public policy in working a fraud on the public. But a distinction is sometimes taken according to the ability of the person hiring a puffer to control the sale absolutely and release the puffer from his bid or his inability to do so. It is said: "If a person who has such control of an auction sale that he of his own volition can release a bidder from all responsibility for his bid, employs another upon an understanding of that character to bid at the sale without disclosing for whom he is bidding, for the purpose of preventing the property from selling at a sacrifice, or for the purpose of making the same bring more than its actual value, the bidding by one or more persons under such employment is such a fraud upon the real bidders that the sale will be declared void at their instance. On the other hand, the mere fact that the

75 Veazie v. Williams, 8 How. 153, 12 L. Ed. 1018; McMillan v. Harris, 110 Ga. 72, 35 S. E. 334, 48 L. R. A. 345, 78 Am. St. Rep. 93; Baham v. Buch, 13 La. 287, 33 Am. Dec. 561; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159; Bowman v. McClenahan, 20 App. Div. 346, 46 N. Y. Supp. 945; Walsh v. Barton, 24 Ohio St. 28; Staines v. Shore, 16 Pa. 200, 55 Am. Dec. 492; Pennock's Appeal, 14 Pa. 449, 53 Am. Dec. 561; Rafferty v. Norris, 12 Pa. Super. Ct. 450; Freeman v. Poole (R. I.) 94 Atl. 152; Peck v. List, 23 W. Va. 338, 48 Am. Rep. 398; Thornett v. Haines, 15 Mees. & W. 367; Howard v. Castle, 6 Term, 643. "The employment by the seller of any person to bid at a sale by auction, without the knowledge of the buyer, without an intention on the part of such bidder to buy, and on the part of the seller to enforce his bid, is a fraud upon the buyer which entitles him to rescind his purchase." Civ. Code Cal., § 1797; Rev. Civ. Code Mont. 1907, § 5127.

76 Dealey v. East San Mateo Land Co., 21 Cal. App. 39, 130 Pac.

person is interested in the property to be sold or in the proceeds of the sale will not preclude him from either bidding himself or from procuring another to bid, either openly or secretly, in his behalf, without regard to what the agreement may be with such bidder, if the one employing such bidder has not himself such control of the sale that he could absolutely release the bidder from all responsibility growing out of his having participated in the sale in that capacity." And accordingly it is held neither contrary to law nor to public policy for persons who will be entitled to the proceeds of land sold by an executor under a decree of court to engage a third person to run the property up to a specified price, with the understanding that if it is knocked down to him they will take it off his hands." Also it seems that the fact of a puffer having bid at a sale will not avoid the sale, if, after the bid of the puffer, there is a bid by a real purchaser before the bid at which the property is knocked down, but that the sale is voidable only in cases where the bid next preceding the winning bid was made by a puffer." And the fact that a person, mistakenly believing himself to have been employed for that purpose, attended an auction sale as a puffer and by making fictitious bids induced the defendant, who was the highest bidder at the sale, to bid more than he otherwise would have done, would not render the sale void as to the defendant, if the auctioneer and the owner of the property sold had no knowledge of such person's conduct.79

§ 451. Mistake.-A purchaser at a judicial sale may withdraw his bid or rescind his contract to purchase on discovering that there has been a mistake as to a material matter of fact affecting the subject-matter, as, for example, where he was mistaken in the identity of the property to be sold, supposing it to be the house next door to that which actually was sold, and sent his agent to bid on that supposition, or where there was a mistake as to the quantity

80

77 McMillan v. Harris, 110 Ga. 72, 35 S. E. 334, 48 L. R. A. 345, 78 Am. St. Rep. 93.

78 National Bank of Metropolis v. Sprague, 20 N. J. Eq. 159. 79 Locke v. Willingham, 99 Ga. 297, 25 S. E. 693.

80 Fallis v. Loughhead, 9 Ohio Dec. 128.

83

of the land, resulting from the acts of the court and the commissioner appointed to sell, less land being sold than was bid for and supposed to have been purchased,81 or where property, having been sold under foreclosure of a mortgage, was immediately thereafter sold on an execution against the mortgagor, and the purchaser at the latter sale bought under the impression that he was buying at the foreclosure sale,82 or where the successful bid was made on the theory that a certain mortgage incumbrance on the land would be deducted from the amount of it.88 But although there is a mistake in the description of the land, both in the order of court and the notice of sale, yet if the purchaser is not deceived by it, and gets the land he supposes himself to be buying, and which the officer intended to sell, there is no ground for rescission. And it is important to notice that the mistake which will justify the release of the purchaser must be one of fact, and not one of opinion. Thus, the fact that the petitioner was present at a judicial sale, and intended to bid, and refrained from doing so because he thought that the bid made by another person was not bona fide, is not such a mistake as will justify setting aside the sale. And so, a mistake as to the value of the property, whereby the purchaser is led to bid more than it is really worth is not ground for relieving him from his obligation." Nor can any relief be accorded to a purchaser on the ground of a mistake which was attributable entirely to his own inexcusable neglect or carelessness. 87 Again, the courts will not relieve against a judicial sale because of a mistake of law, and more especially where the mistake resulted from the purchaser's following the erroneous advice of his own.

85

81 Castleman's Adm'r v. Castleman, 67 W. Va. 407, 68 S. E. 34, 28 L. R. A. (N. S.) 393.

82 Borden v. Fahey, 56 Tex. Civ. App. 218, 120 S. W. 564. 83 Hayward v. Wemple, 152 App. Div. 195, 136 N. Y. Supp. 625. 84 Lamkin v. Reese, 7 Ala. 170.

85 Fiske v. Weigel (N. J.) 21 Atl. 452.

se Columbia Paper Bag Co. v. Carr, 116 Md. 541, 82 Atl. 442; Clarke v. Cooper, 148 Mo. App. 230, 128 S. W. 47.

87 Graham v. Healy, 154 App. Div. 76, 138 N. Y. Supp. 611; Columbia Paper Bag Co. v. Carr, 116 Md. 541, 82 Atl. 442.

attorney.8 And a mistake as to the nature, extent, or validity of the title sold comes within this category.89

88

91

§ 452. Irregularities, Errors, and Defects.-Mere irregularities in the conduct of a judicial sale, or immaterial defects in the notice or other preliminary proceedings, will not be sufficient ground for setting it aside, unless connected with circumstances of fraud, accident, mistake, or surprise, or unless shown to have been the direct cause of the sacrifice of the property." But a sale on attachment may be vacated where there was an irregular service of the summons and an unauthorized entry of appearance for the defendant. And an execution sale not advertised as required by the statute will be set aside on a timely motion.92 So, a sale on execution, held in defiance of an order restraining the sale, made by the court rendering the judgment, will be set aside where the existence of such order, whether valid or not, was the cause of the sacrifice of the property at a very inadequate price."3 Substantially the same rule. applies to tax sales. Such a sale should not be set aside on account of mere errors or irregularities in the sale or in the proceedings leading up to it, where no fraud is shown, and it does not appear that the sale has resulted in any substantial injustice to the owner of the property." And even if

88 Fraser v. Fraser, 128 Ill. App. 73; Watson v. Hoboken Planing Mills Co., 156 App. Div. 8, 140 N. Y. Supp. 822.

89 Stonerook v. Wisner (Iowa) 130 N. W. 120.

90 Holly v. Bass, 68 Ala. 206; Victor Inv. Co. v. Roerig, 22 Colo. App. 257, 124 Pac. 349; Horkan v. Eason, 10 Ga. App. 236, 73 S. E. 352; In re Receivership of Great Western Beet Sugar Co., 22 Idaho, 328, 125 Pac. 799, 43 L. R. A. (N. S.) 671; Lampton v. Usher's Heirs, 7 B. Mon. (Ky.) 57; Shipp v. Wheeless, 33 Miss. 646; Allen v. Pierson, 60 Tex. 604; Rosenthal v. Mounts (Tex. Civ. App.) 130 S. W. 192; Rule v. Richards (Tex. Civ. App.) 149 S. W. 1073; Walker v. Beauchler, 27 Grat. (Va.) 511.

91 Great West Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 20 Pac. 771, 13 Am. St. Rep. 204; Id., 14 Colo. 90, 23 Pac. 908. 92 Cotton's Ex'x v. Cotton, 136 Ky. 54, 123 S. W. 331.

93 Van Gieson v. Maile, 213 U. S. 338, 29 Sup. Ct. 492, 53 L. Ed. 821.

94 Craig v. Pollock, 5 Dill. 449, Fed. Cas. No. 3,335; Palmer v. Ozark Land Co., 74 Ark. 253, 85 S. W. 408; Reeve v. Kennedy, 43 Cal. 643; St. Clair v. McClure, 111 Ind. 467, 12 N. E. 134; Farmers' L. & T. Co. v. Wall, 129 Iowa, 651, 106 N. W. 160; Blondin v. Griffin, 133 Mich. 647, 95 N. W. 739; Munger v. Halden, 83 Minn. 490