FEDER4L ·
. vol.
40.
..resale they were approached by Martin, representing p.E!rsons known as the "Cooke Syndicate." Martin ,suggested that tb,e Cooke syndicate would, be wIDingt9 buy the property. of Oakman and in case the latter should buy it, and it was upally arranged that, if .Oakman and Bates should become the Cooke, syndiCate would take the property of them on terms by,;whichthey should rel,l.1ize as much as their bonljholdElrs. would' ,have if the money on the original sale hll.d been paid. Mr. ;Martin had distinctly stated that under no would the Cook,esyndicate beCOme bidders or pursale; that they woul<ibe willing to buy the. property from Oakman Rnd Bates, but they needed ater;m of credit which the terms of the, resale would not permit. The; Qakman and Bates party intended all alQng in the propertY;lj,t resale as cheaplyastheycpuld, unless some other· purchaser was willing .10: bid the price at which it was origipally s.old.They intendedto,pl'Qtect themselves,so that they would get as IDuch.as they would ha",e,got originally. The a,rl'angement with the Cooke syndicate couldhav,e in£luence upontpe bidding at .tlw resale, .not havebiq any circuml!tances.Theti/.'rangement Wfl,8 a'· perfectly one on the part of Oakman and&tes to protect the interests of their party.·:Tl;tere is tes.timQuyalso QfMr. Miller, who wM& bondholder, Qut,lilotof the Oak;,man and Batesiparty, whohad;;tded"to form. a syj,adi9ate to buy the ,:property in oJ:der to protect his Ci)"'ll, interests. . that he confer.l'ed with ¥artin, and made an: aJ:'ra.ngement with:hj)n by which he was to haYe, :an; eighth interest property, on the ;basis of th.e price :which ,the Cooke· syndicate migbt;hll-ve to pa.y for'jt. According to his ,teatimony this fl,rJ;angement waspl'pugM about upon. his repref1en.tations ;to Martin ,thath!'l would otherwise. bid' at the and. in order to pre. vent him froD:l:doing so. After the Cooke syndicate,ll.(lquired the propMlllerrefused to.taj{e the, eighth interest on the. basis of$486,000, ;(the .price they ;paid,) because .11e: tpo,ught .it wall. too much. .He was ',notwilling to corne in on.a that of $400:;000, claiming that have ,bqught it foro.go09.; deal, less than $400,000. . .,:Upon sucb sease, if the cltl,lEjewere here on fiJ;lal. hearing the court ,would not vacaterthe sale, 0;11 grant the complainRD,tsa,J;ly relief. It is apparent that :Miller would not haYe bid, more than was bid by Oakman and Bates,Jlnd ,there is nothing;w. justify the inference that anybody !else would have bid more. ltwas entirely competent for the bond:holdersl':epresented by Oakman and Bates to combine for the protection .()ftheir intereats,(Kearney v. Taylor. 15 How. 494j) and equally com.petent for them to make all a.rrallgeltlent in advanceby.which, in case .. be bought by them; they shQ.uld dispose of it at,an l8dv,l,tnce. 10 by the.ar.rangement, did they have any interest competition. It walil.just as much,fheit interest to, have .,the propeJ'tyhri.ng the highest pdeeohtainableasit would. have been if itherehad:be-en no such a.rrangement.. Such agreementS are not illegal lunless meant to prevent and, induce a of the ,prop-
,eDiy. sold;
Wieken Vi H(YjYpOck,6 Wall. ,94. .
..:.::
,
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The view reached makes it unnecessary to consider whether, if the allegations of the bill were sustained by tbe evidence, the complainants would be entitled to any relief in the present action, whether they are not concluded by the decree of the circuit court of the city of Richmond confirming the resale, and whether they have any remedy, ,not hllving sought it at the hands o.fthat court. WheJ;l they became purchasers at the original sale they submitted themselves to the jurisdiction of that court in the foreclosure suit as to all matters connected with such sale, or relating to them in the character of purchasers. Casamajor v. Strode, 1 Sim. & S. 381; Requa v. Rea, 2 Paige, 339; Blossom v. Railroad qo., 1 Wall. 655; Minnesota 00. v. St. Paul Co., 2 Wall. 609. They acquired a sufficient stat'us to enable them to apply to that court to vacate the re':' sale. The cases are exceptional in which an original suit should be sanctioned by a party to a ·foreclosure suit to set aside a sale under a decree, where relief could have been obtained by a summary application totbe court in the suit. Ordinarily that is the only court which is competent to protect all parties interested in the sale, because generally that can only be done by ordering a resale upon condition looking to the pro-: tectiouofall. BrOW'l'/,v· .FrOBt, 10 Paige, 243. I Where the circumstances are such that the purchaser becomes a trustee ex ma1eficio; s\.1ch'suits have been allowed. Cocks v. Izard, 7 Wall. 559;R'ibonv. Railroad Cos.',' 16 Wall. 446. In the present case the purchasers are not parties to the suit; neither are the plaintiffs in the foreclosure suit; and could, not be determined in their absence upon any theory of relief. They are certainly entitled, as well as those who purchased from them, to be heard before thelsnle could be vacated. The delay which has intervened be-: fore filing the ,present bill (a period of six years) is not exphiined, and probably cannot be, because those associated with Best were aware of what took place at the resale when the order confirming it was made; and, in the,absence of such explanation, the laches of complainants pre-' elude them from asking to have the resale set aside as fraudulent.' Bar.;. wood v. Bailroad Co.,.17 Wall. 78. Moreover it would not be equity to decree against the special commissioners, deducting 886,000 from the amount due on the bonds, and tbus deprive the bondholders not represented by Oakman and Bates of their share, when neither the sioners nor these bondholders have been participants in a wrong in any' way. The motion is denied. '
