Mills v. Rogers
12 Ky. 217
2 Litt. 217, 13 Am.Dec. 263
Court of Appeals of Kentucky.
Dec. 6, 1822.
ACTION: Reversed and remanded


Where the plaintiff in an execution prevents other persons from bidding for the land levied on, by promising, if they will not, to purchase it himself, and sell to them at a low price, such parts as they may want, and in consequence of such negotiation, purchases for less than its value, the sale should be set aside, on motion.

Rogers having obtained a judgment against Mills, issued execution thereon, which was levied upon a tract of 6,108 acres of land, by the sheriff, and Rogers became the purchaser, at the price of $13. Mills afterwards moved the court to set aside the sale; but the court overruled the motion, and Mills excepted, and has brought the case to this court by writ of error.

Various objections were taken to the sale. Amongst these, it was alleged that Rogers had procured the sale by fraud and covin between him and other persons, who attended at the time and place of sale, and were prevented from bidding and becoming purchasers, by reason of agreements and promises of favor and parts of the land, if they would not bid against Rogers; and particularly, that Rogers did prevent Gabriel Buckner from bidding for the land, by promising Buckner, who had attended with a view of purchasing that Rogers would relinquish, at low prices, to him, so much of the land as interfered with William Buckner, who held under an adverse claim.

On the trial of the motion, Buckner swore, that he went to the place of sale for the purpose of purchasing the land, and when he got there, Rogers took him out and asked him if he had come to bid; and being answered in the affirmative, Rogers proposed to him not to bid, and that if he (Rogers) bought, he would let Buckner have what interfered with his father, William Buckner's claim, for nothing. Buckner refused to make the contract, conceiving that a contract to have the interference for nothing, would not be binding; but he told Rogers, that if he would convey the interference to William Buckner, his father, he would not bid against Rogers, and would pay half the purchase money; and, owing to the agreement with Rogers, Buckner did not bid. Several other witnesses stated, that in repeated conversations respecting the purchase of the land, they had heard Rogers say, that the way he got the whole land, was, that when he saw Gabriel Buckner had come to bid for the land, he took him out and proposed to Buckner not to bid, and that he, Rogers, would let Buckner have part of the land.

Whether conduct of this sort, on the part of the purchaser of land sold under execution, ought to vitiate the sale, is, as far as we are aware, a new point, which has never occurred in the courts, either of England or America; and it must, therefore, be decided by this court, upon principle, without the aid of the light which might be shed on it from its discussion by other tribunals.

Such conduct on the part of the purchaser, certainly can not be reconciled with the strict rules of moral propriety. Its obvious tendency is to depress the price of the property sold, and thus to injure the debtor. To depress the price of the property, is, in fact, the very object which the purchaser in such case has in view, and he can be influenced by no other motive than that of enriching himself, to the prejudice of the debtor. It is evident, therefore, that his conduct can not be justified on the score of morality; for it is the motive of the agent, and the tendency of an action, by which alone we can determine its moral quality.

It is true, that the law will not notice every violation of the rules of morality; for legal obligation is necessarily more circumscribed than moral duty. Sometimes, the injury done by a breach of moral duty, is so evanescent and perishable, or so minute and trivial, as not to equal the inconvenience of applying a legal remedy; and such cases come within the maxim, de minimis non curat lex; and sometimes the injury may be of such a character, that the person prejudiced by it might have guarded against it, with the exercise of that prudence which all men are required to use in their own affairs; and then the case comes within the maxim, vigilantibus non dormientibus jura subserviunt. But, except in cases of those two descriptions, for every injury done by a breach of moral duty, the laws of all countries should, and those of this country do, afford a remedy; and, most clearly, the present case does not come within either of those two descriptions of cases; for the injury done to the debtor, is not less than if the price of the property sold had been depressed by any other covinous or sinister means; and, from the very nature of the case, it is impossible to suppose that the debtor could, by any ordinary vigilance, have guarded against it.

The judgment must, therefore, be reversed with costs, and the cause be remanded, that the sale and conveyance may be annulled and set aside, and the return of the sheriff quashed.

Ky.App. 1822.
Mills v. Rogers.
12 Ky. 217, 2 Litt. 217, 1822 WL 1130 (Ky.), 13 Am.Dec. 263


     

Last Update Tuesday, 18-Dec-2012 01:36:19 EST

 County Coordinator
County Coordinator: Gayle Triller
Copyright © 2015 by the KYGenWeb Team. All
rights reserved. Copyright of submitted items
belongs to those responsible for their authorship or
creation unless otherwise assigned.