the sale.

The defendant demurred to the bill, and the cause came on for hear

ing upon the demurrer.

Storer, Hammond and Ewing, in support of the demurrer.

Fox and Este, contra.

The court were unanimously of opinion that a court of equity might properly interfere to prevent a sale of land upon execution, where such sale would not at law, confer a title on the purchaser. And its only consequence would be to embarrass the title of the complainants. Upon the merits of the case arising on the construction of the provisions of the statutes, the court were equally divided in opinion. Consequently the bill was dismissed.

HOUGH v. HUNT.

Where a person deeply in debt, in order to obtain a loan of money agrees to purchase a tract of land at more than double its value and gives a mortgage upon other property to secure the loan, and part of the purchase money, the vendor having notice of the purchaser's necessities, equity will rescind the contract.

This case was reserved for decision here, by the Supreme Court of Ross county. It was a bill in chancery, asking relief against a contract for the purchase of a tract of land, by Hough from Hunt, upon the ground of advantage being taken of the necessities of the complainants' intestate, and unfair practices in respect to the contract. The facts of the case were as follows:

In September, 1818, Hough, the intestate, being pressed for money to pay a debt due from him to the Branch Bank of the United States at Lexington, applied to the defendant for a loan of money to make that payment, about two thousand six hundred dollars. Hunt made an agreement with Hough, to make him a loan of ten thousand dollars, upon condition that Hough would buy of him five hundred and ninety-three acres of land, near Chillicothe, where Hough resided, at twenty dollars per acre. Hough assented to these terms, and received, by way of loan, two thousand six hundred dollars.

The price of the land, and the money advanced, amounted to fourteen thousand four hundred and seventy-five dollars. Hough gave his three separate notes to Hunt, dated September 15, 1818, for four thousand eight hundred and twentyfive dollars each; one payable 15th September, 1819; one 15th December 1819; one 15th March, 1820. In November, 1818, Hunt gave the intestate a bond to convey the five hundred and ninety-three acres of land, upon the payment of the two last notes. At the time of taking the notes, he took from Hough a mortgage of a separate valuable tract of land, to secure the pay ment of the first note, due September, 1819, which was given in part for the money borrowed, and in part for the purchase money of the land. The balance of the loan of ten thousand dollars, beyond the two thousand six hundred, was never advanced, Hough not being able to give such security as was required by Hunt. Hough died on the 4th of September, 1819. Judgments were obtained, on all the notes, against Hough's administrators, and

also upon the mortgage. Hunt knew of Hough's embarrassments at the time of the contract; and the land purchased at twenty dollars per acre, was proved, by several witnesses, to have not been worth half that sum. The bill prayed that the contract of purchase might be cancelled, and the mortgage discharged by the payment of the two thousand six hundred dollars loaned, with inter

est.

Grimke, for complainants. Brush and Fitzgerald, contra.

By the COURT.

From the evidence, in this case, it is manifest, that, at the time of the contract for the sale of the land in question, the vendor knew that the purchaser was in some degree embarrassed. It is also fully proved that the land was not worth half the price that Hough agreed to pay for it. The circumstances of the case are altogether extraordinary. Hough is hard pressed for the sum of two thousand five hundred dollars. He applies to Hunt for a loan of that sum. He obtains it, and an engagement that the lender will loan him seven thousand five hundred dollars more, upon good security. But at the same time that the twenty-five hundred is borrowed, and a contract made for a further loan, a contract of sale is made for a tract of land, at eleven thousand nine hundred and seventy-five dollars, being more than double its real value. Two thousand three hundred and twenty-five dollars of which, with the money actually loaned, is secured upon other property than that sold.

The mind revolts at the idea that a man so embarrassed would, to obtain the loan of two thousand six hundred dollars, voluntarily embarrass himself further, by creating a new debt of eleven thousand nine hundred and seventy-five dollars, for property not worth half that sum. It is impossible that the vendor, who also made the loan, was not sensible that he was taking advantage of the purchaser's necessity. The imprudence of the proceeding, on the part of Hough, was so gross, that it could justly be attributed to no other cause.

It is not in proof that Hunt knew the extent of Hough's embarrassments. But he knew that he was in necessity to some extent; of that necessity he must have been sensible he took advantage, in exacting the contract for the sale of the land. The wish to obtain further loans and the agreement to make them, with the subsequent escape from performing that agreement, are strong circumstances, in confirmance of the fact that Hunt knew Hough's situation, and acted upon it.

One peculiar hardship of the case is, that upon account of this unconscionable contract Hunt has fastened a part of the purchase money, upon Hough's other lands, sweeping from previous creditors that which their means had supplied, and retaining to himself the whole consideration which his contract was supposed to advance.

The rule in chancery is well established. When a person is encumbered with debts, and that fact is known to a person with whom he contracts, who avails himself of it to exact an unconscionable bargain, equity will relieve upon account of the advantage and hardship. Where the inadequacy of the price is so great that the mind revolts at it, the court will lay hold on the slightest circum. stances of oppression or advantage, to rescind the contract. So, when a person

borrowing money to relieve his necessities, is induced to purchase property at an exorbitant price, and to an amount greatly beyond the loan obtained, and secure the payment, by mortgage on his other lands, the necessity of the purchaser, connected with the exorbitancy of price, are sufficient evidence of unfair advantages to justify the interference of the court. We consider this a case of great exorbitancy of price, where the purchaser was deeply embarrassed, and where the vendor availed himself of that embarrassment to exact the bargain. We are therefore of opinion that the contract of purchase be rescinded: and that the mortgage remain a lien only for the money loaned, and interest.

STONE v. RUFFIN.

A sheriff cannot be required by the plaintiff to pay money made on execution before the return of the writ, and refusal to pay such money, is no ground for an amercement.

This was a writ of error to the judgment of the Court of Common Pleas of Hamilton county, on a motion to amerce the sheriff, in which judgment was given for the defendant. It was reserved in Hamilton county, and the case was as follows:

The notice to amerce recited a judgment and execution, Ethan Stone, for the use, &c. v. Joel Williams. It recited a levy and a sale upon execution, returnable to April term, 1824, a sale made on the 23d of February, 1824. A notice to the sheriff that the Bank of the United States were the real owners of the judgment; and a notice from them, that they would not receive paper of the Bank of Cincinnati in payment. A demand of payment, made on the sheriff, March 1, 1824, and a refusal to pay, except in paper of the Bank of Cincinnati for which the sale had been made.

The defendant put in an answer to the motion, alleging that it was no case for amercement; that there was no law authorizing the amercement, and relying upon the statute of limitations. The Common Pleas gave judgment for the defendant, to reverse which this writ of error was brought.

The cause was elaborately argued by ESTE and Fox, for plaintiff in error, and by C, HAMMOND and N. WRIGHT, for defendant.

By the COURT.

Upon examining this record, we find that the writ of execution was returnable to April term, 1824; that the sale was made in February, 1824, and the demand upon the sheriff, to pay over the money, was made March 1st, 1824. The demand thus made, is not one upon which the sheriff can be subjected, on motion, to amercement. He is not bound to pay over the money to the plaintiff, until the return of the writ. On the contrary, he ought to hold it, until the proceedings have been examined, and the sale confirmed by the court. The judgment must, for this reason, be affirmed.

DUDLEY, ET AL. v. LITTLE, ET AL.

JUDGES BURNET AND SHERMAN.

1826.

Upon a sale of land for taxes, an agreement among several that they will advance funds and one shall buy, so as to prevent competition, and afterwards divide the land among them, is fraudulent and equity will relieve against the sale.

The bill stated, that the complainants, as heirs at law of Israel Ludlow, were the proprietors of a tract of land situate in the county of Delaware, on which the taxes had not been paid. That at a sale of land for taxes, three hundred and seventy acres of the land in question, worth three dollars per acre, had been sold by the collector, and purchased by the defendant for thirty-three dollars and seventy-three cents. The bill charges, that a fraudulent combination had been formed by the defendant and sundry other persons, to purchase large tracts of land at the said sale, for the purposes of speculation; that it had been agreed, between the defendant and those who were to participate in the profits of the speculation, that the defendant alone should bid; that the other partners in the contract should advance their portions of the purchase money, and receive their share of the profits; and that, in pursuance of that fraudulent agreement, the defendant had purchased the land in question, and obtained for it a collector's deed. The prayer of the bill was to set aside the deed and restore the com. plainants, &c. The defendant demurred to the bill.

J. K. Cory, for the complainants. Pettibone, contra.
By the COURT.

A partnership, or contract formed for the purchase of land at a sale for taxes, is against the policy of the law; and if such contract or partnership be entered into for the express purpose of making such purchases, it is a fraud on the owner of the property, and the purchaser cannot obtain an available title.

Such combinations have, necessarily, a direct tendency to prevent competition, which it is the duty of the legislature, and the policy of the law to encourage. Over a sale of this description, the owner has no control-he cannot refuse a bid, or adjourn the sale, or fix a sum below which the property shall not be struck down. The sale is managed by the agent of the state. The owner is not consulted. The highest bidder becomes the purchaser, although the sum bid be less than a hundredth part of the value of the property. This being the case, any combination which has a tendency to reduce the price of the property, by preventing competition, must operate as a fraud on the owner. The effects of such combinations cannot be controled by any vigilance on the part of the

owner.

It frequently happens, that large quantities of land are offered for sale on these occasions, in the absence, and without the knowledge of the owners; and if such combinations are permitted, all the persons present at the sale might form themselves into companies, and, by an agreement not to bid against each other,

might purchase in the whole of every tract offered, for the amount of tax due on it.

We do not mean to say, that partners cannot purchase property at a tax sale, for the convenience of the business they are engaged in, when speculation is not their object; but that a partnership or combination cannot legally be formed, for the purpose of making such purchases. As this was evidently the fact in the case before us, the complainants are entitled to a decree. They must take it, however, on the condition of refunding the purchase money and interest, with the penalty of fifty per cent. allowed by law, and on the payment of cost.

SMILEY v. WRIGHT, ET AL.

JUDGES PEASE AND SHERMAN.

1826.

A widow who is entitled to dower, and is present at the sale of the lands under an order of court, and assents that the sale may be made free from her dower, in consequence of which the purchaser pays a higher price, is thereby barred from her dower, notwiths anding the purchaser had notice of her claim.

The bill states in substance that Joseph Lewis, the former husband of the complainant, Elizabeth, purchased parts of lots No. 174, 175, and 176, in the town of Steubenville, went into possession, made large and valuable improvements on them, that he paid the full amount of the purchase money, but had not obtained a legal title thereto, and died in the year 1807, leaving her his widow. The bill further states, that administration of the estate of said Lewis, was granted to Jacob Fickas, since deceased, who, in 1810, obtained an order of court to sell the said lots subject to the complainant's right of dower therein, for the payment of the debts due by the estate of Lewis. That said lots were shortly thereafter sold at public sale, and conveyed by the administrator to the defendant, Hartford, who has since conveyed them to the defendant Wright. The bill charges that Hartford and Wright, knew, at the time they respectively purchased, of the complainant's right of dower, and that in 1819, she demanded of the defendant Wright, who was then in possession, claiming title to the lots, to set off and assign her dower. The bill states as a reason why no demand of dower was made before 1819, that she was ignorant of her right, that Fickas, the administrator, was her brother, in whom she had the most perfect confidence, and that he always informed her she had no right in her husband's real or personal estate until the debts were paid, when she would be entitled to one third of the residue. The bill further charges, that Hartford has procured a legal title to the lots by a conveyance to him from the vendor of Lewis, and prays that dower may be assigned, and a decree for a just portion of the rents and profits.

The answers of the defendants admit the purchase of the lots by Lewis, his possession, the payment by him of a considerable part of the purchase money, his death, the administration granted to Fickas, the order of court to sell subject to the widow's dower, the sale and conveyance of the whole interest of Lew.