Hobby v. Finch

Tbe advertisements and conditions of

sale set forth in tbe reply of tbe plaintiff, are a sufficient evidence, witbin tbe meaning of tbe statute, of an agreement in writing signed by tbe defendants, to sell tbe land to tbe highest bidder (1 Blackstone’s Reports, 599, Simon v. Metivier; 3 Burr. 1921, S. C.; 1 Wilson, 118, Welford v. Beezley and others); and as tbe plaintiff was tbe highest bidder, and tendered security for payment, pursuant to tbe written agreement of .the defendants, be has a right of action against them, for refusing a deed, which, by their agreement, they bad promised to any person, complying with their terms. If an action in such case could not be sustained, it would discourage people from bidding at public auction, and render ineffectual tbe laws directing such disposition of estates.

dissenting. 1st. Because tbe declaration is ill. It doth not appear that tbe plaintiff paid or offered to pay, or secure tbe sum be bid for tbe land, nor that be bid any sum that could have justified tbe administrators in passing a deed: Nor is there any averment of tbe value of tbe land, or any rule of damages given. 2d. Tbe advertisement is no evidence or memorandum of tbe agreement on which tbe action is grounded. 1 Str. 426, Seagood v. Neale. Tbe agreement was made at tbe time tbe land was bid off, and was made and expressed on tbe one part by tbe bid made for tbe land, and on tbe other part by striking it off. Here tbe minds of tbe parties met, and tbe substance of tbe agreement, as thus expressed, was, that tbe plaintiff should have tbe land for tbe sum be .bad then bid for it, and that a deed should be executed accordingly. Tbe advertisement doth not express this agreement, nor either part of it; nor was any reference bad to tbe advertisement in forming this agreement, farther, than as to tbe mode of payment. That this *17sale was at public auction, makes no difference. It is as requisite by tbe statute that public sales of land should be guarded as private ones; and it is as easy to be done. A memorandum of the sale might be taken in writing from the vendor, and would hardly be refused, if required at the time of the sale or agreement. I think the statute extends to this case, and that it has not been complied with.