BLANKS et al. v. FARMERS' LOAN & TRUST CO. et al., 122 F. 849

PARLANGE, District Judge (after stating the facts as above). The appellants and the appellees are all mortgage creditors. Counsel for the appellants stated in argument that his clients should not be considered as parties desirous of buying the property, as their only interest is that the property should realize the greatest sum possible towards the satisfaction of the obligations secured on the property. Counsel for the appellants also stated in argument that inadequacy of price is the only ground of exception to the master’s report concerning the sale, now relied on. The complaints of the appellants are substantially: (

i) That the court did not, because of inadequacy of price, vacate the sale without condition; and (2) that the court did not order that the property be reoffered for sale by public auction, and did not also order a second publication and advertisement of the sale for another term of 30 days. It is perfectly well settled that a judicial sale will not be set aside for inadequacy of price unless it be so gross as to shock the conscience, or unless there be additional circumstances which would make it inequitable to allow the sale to stand. Graffam et al. v. Burgess, 117 U. S. 180, 6 Sup. Ct. 686, 29 L.

Ed. 839; Pewabic Mining Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. 887, 36 L. Ed. 732; C. C. A., Sixth Circuit, in Magann v. Segal et al., 34 C. C. A. 323, 92 Fed. 252; Fidelity Insurance, etc., Co. v. Roanoke Iron Co. (C. C.) 84 Fed. 752; Fidelity Insurance, etc., Co. v. Roanoke St. Ry. Co. (C. C.) 98 Fed. 475; Beach, Mod. Eq. Pract. § 824; Am. & Eng. Enc. of Law (2d Ed.) Vol. 17, p. 1000, Verbis “Judicial Sales,” and numerous cases there collated.

In the first place, it has not been made reasonably certain that the price was inadequate under the circumstances. 'The affidavits, both pro and con, are but expressions of opinion as to what the property would bring on a resale. Opinions that a larger price would be brought are not sufficient to set aside a sale. Fidelity Trust, etc., Co. v. Mobile St. Ry. Co. (C. C.) 54 Fed. 26.

If it were true that a judicial sale must be set aside whenever one or more affiants, however honest, state that it is their belief that the property would bring a larger price on a resale, many, and perhaps most, judicial sales would have to be set aside.

But, even if it were conceded that the price was inadequate, it is evident that the inadequacy would not be such as to shock the conscience, within, the meaning of the numerous adjudications above referred to; and, as it is not claimed that there is any additional circumstance which would make it inequitable to maintain the sale— in fact, no such circumstance appears in any manner — the complaint as to the inadequacy of price is clearly unfounded. We find the appellants’ second contention to be also baseless.

As the result of the appellants’ initiative, the appellees have been made to pay $24,100 more than they would otherwise have paid. Yet they do not complain. Nor is there any complaint from the other mortgage creditors, whose interest is very much larger than that of the appellants. The only complaint comes from the appellants. Can they be heard? Have they not fully acquiesced in the action they complain of, and are they not estopped by their acts?

On their initiative, the judge of the lower court passed a decretal order on April 17, 1902, to the effect that if they should at .chambers, on a day fixed, make a bid larger than the former bid by $10,000, the court would open the bidding, and allow further bids to be made before the judge at chambers.

Whether or not this order clearly stated that the bidding was to proceed immediately before the judge, it is evident that' on a subsequent date the appellants’ counsel were fully informed that the judge intended to proceed with the bidding at chambers, and at their request they were given time to prepare for the bidding; and, finally, having deposited'$10,000 with the master as a prerequisite, they actively took

part in the bidding, when, after a considerable number of bids had been made, the property was adjudicated to the same parties who had made the highest bid at the first offering. As has already been said, the result of the appellants’ action in this matter has been to compel the purchasers to pay $24,100 more for the property than they would otherwise have paid. The appellants, as mortgage creditors, are, of course, benefited by such increase in the price.

If, as stated in argument by appellants’ counsel, they were given different relief from that which they had asked, they should have stood on the refusal of the relief to which they believed themselves entitled and applied to this court for redress. In this matter the statute concerning the advertisement and sale of property (Act March 3, 1893, 27 Stat. 751 [U. S. Comp. St. 1901, p. 710]) was fully complied with.

Every- one has had a full opportunity to bid on the property, and the question is not whether the judge could originally have sold the property at chambers and without advertisement, but whether, after the property has been duly advertised and offered for sale, the action of the judge, resulting in the purchaser’s increasing the price very largely, should be upset at the instance of the appellants, who were the prime movers in the matter, and participants in the latter bidding. It is clear that if the appellants had succeeded in buying the property they would not be here complaining.

Can they be heard to complain because others bought it? We are clearly of opinion that, under the circumstances of this matter, the action of the lower judge should be allowed to stand. That action has resulted beneficially to all parties in interest, including the appellants. The final price obtained exceeds largely the upset price fixed by the court. It was stated at the hearing by the appellants’ counsel that the check for $10,000 has been returned to the appellants. By taking back the check, they of course acquiesced further in the action of the judge.

If we were to annul the sale, it would seem that there would be no assurance that on a resale the property would even bring as much as it did before. The decree appealed from is affirmed.