
    Dresbach vs. Stein. Dresbach vs. Dresbach.
    1. S. made an assignment of all his property to D. and W. for the benefit of his creditors, under the assignment laws of the state. A portion of the real estate was sold by the assignees at private sale, and all steps taken about the sale were in strict conformity to amended section five of “an act regulating the mode of administering assignment for the benefit of creditors.” (58 Ohio Laws, 105.) — Held: This was a judicial sale.
    2. Where the assignees afterwards brought an action against the purchasers to foreclose the mortgage given to secure a portion of' the purchase money, it is not a good defense to show that the assignees and purchasers were mistaken as to the number of acres in the tract of land so sold.
    Error. Reserved in the District Court of Pickaway County.
    On the 5th of November, 1875, Isaac W. Stage made an assignment for the benefit of his creditors to Isaac E. Dresbach and Festus Walters, and the deed of assignment was at once filed with the probate court of Pickaway county, Ohio. On November 12th the assignees filed a petition in the probate court asking that they be authorized to sell the real estate of the assignor, to which proceeding the assignor, his wife, all lien holders and other parties having an interest in the land, were made parties. The land was in two tracts, one of 591 acres in Walnut township and the other of 288 acres in Circleville township. Proper orders were after-wards made authorizing the sale of the land and the subdivision of the 591-acre tract into four parcels. Lot No. 1 of this sub-division is the one involved in this case. Prior to October, 1877, the assignees offered this lot No. 1 for sale four different times, but it remained unsold. On the 8th of October, 1877, the assignees asked the probate court for an order to sell this lot at private sale, which request was granted. October 12th the assignees reported to the probate court that they had sold these premises to David H. Stein and Wilson Dresbaeh at #50 per acre. The next day the sale was confirmed by the court and the assignees directed to make and deliver a deed to the purchasers. The terms of sale were one third cash, one third in one year and the remainder in two years. The premises were supposed to contain three hundred and sixty and acres. Stein was the purchaser of one half and Dresbaeh of the other half. S. & D. sub-divided the premises and to secure the deferred payments each, with his wife, on the 20th day of October, executed and delivered to the assignees his mortgage.deed.
    In January, 1880, the assignees instituted two suits in the court of common pleas of Pickaway county, one against Stein and wife and one against Dresbaeh and wife, asking for the foreclosure of the two mortgages and the sale of the mortgaged premises on account of the non-payment of the last installment of purchase money. As a defense the defendants averred that the parcel of ground sold to them by the assignees only contained 320-35B2g- acres, and that this mistake was made by the surveyor employed by the assignees to sub-divide the 591 acre tract. ■ They therefore asked that this mistake be corrected by the surrender and cancellation of the notes and mortgages upon the full payment by them of the purchase money for 320-j^ acres at $50 per acre. To the answers replies were filed and issues of fact ■ made up.
    The court of common pleas rendered judgment in favor of the assignees and appeals were taken to the district court.
    Upon the hearing of the case of Dresbach et al., Assignees, v. Stein and wife, by the district court, the. folio wing order was made:
    “ This day came the said parties, by their attorneys, and this cause came on for hearing on the pleadings and evidence, and the evidence being heard, and it appearing to the court that important and difficult questions are involved in this case, on motion of the defendants, it is ordered that this .case be, and the same is hereby reserved and ordered to be sent upon the certified bill of evidence filed herein, to the supreme court of this state, for its decision on the same.”
    The same order was made in the case of Dresbach et al., Assignees, v. Dresbach and wife.
    
    
      Festus Walters, for plaintiff in error.
    I. The sale in this case was a judicial sale. Matter of Henry Hooper, 22 N. Y., 67; Sheldon v. Newton, 3 Ohio St., 495; Williamson v. Berry, 8 How., 547; Mason v. Osgood, 64 N. C., 467; Moore v. Schultz, 13 Pa. St., 102; Rorer on Judicial Sales, 3, 7, 9, 10, 156; Freeman on Void Judicial Sales, 14; Amor v. Cochrane, 66 Pa. St.., 308; Halleck v. Guy, 9 Cal., 181-195 ; 5 Mason C. C., 414-420; Bussey v. Hardin, 2 B. Mon., 407; Robb v. Irwin, 15 Ohio, 698; Aultman v. Seiberling, 31 Ohio St., 205; Roberts v. Shroyer, 68 Ind., 64; 39 N. Y., 302. The purchaser can have no indemnity. 14 Ohio, 414; 3 Ohio St., 494; 36 N. Y., 677; 2 Paige, 339; 26 How. Pr., 325; 5 Mason, 414; 9 Cal., 181; 4 Burr, 171; 2 Johns. Ch., 519.
    II. “The rule of caveat emptor applies in all its rigor to judicial sales of real property.” Rorer on Judicial Sales, 168, § 459; 14 Md., 153; Mason v. Wait, 4 Scam., 127; Worthington v. McRoberts, 9 Ala., 297; 3 Watts & Serg., 444; 4 Texas, 431; 15 Id., 523; 15 Ill., 295; Hutchins v. Brooks, 31 Miss., 430; 1 La. Ann., 200; 5 Mason, 420; 12 How. U. S., 386; 2 Id., 312; 13 Texas, 322; 15 Id., 523; 4 Conn., 513; 78 Ill., 573; 60 Id., 164; 69 Id., 431; 33 Penn. St., 276; 9 Cal., 181; 26 Am. Rep., p. 38, and cases cited in note.
    “ In this state the rule has been applied to its fullest extent, and has become a rule of property firmly established.” Nowler v. Coit, 1 Ohio, 519; Vattier v. Lytles, Ex. 6 Id., 478; Creps v. Baird, 3 Ohio St., 276; Salmand v. Price, 13 Ohio, 368; Durbin v. Fish, 16 Ohio St., 538; 29 Ohio, 462; 14 Ohio St., 389; 20 Texas, 103; 26 Wend., 169; 22 Texas, 135.
    III. Even if the statements of the assignees, as to the number of acres, were wrongly false and fraudulent, the estate is not liable. Adams’ Eq., 367, and cases cited; 14 Ohio St., 276; 31 Id., 69; 13 Penn., 121; 12 Ohio St., 533; 30 Miss., 148; 15 Texas, 524.
    IY. If there was a mistake, it was that of the purchasers, and they can claim no benefit of a mistake as to what they ought to have known. Byers v. Chapin, 28 Ohio St., 304; Story’s Eq. Jur., §§ 144-147; 4 Johns. Ch., 596 ; 22 Texas, 133; Willard’s Eq. Juris, p. 152; Long v. Warren, 68 N. Y., 426; 13 Wall, 379, Slaughter v. Gerson; 5 Eng. Rep., 847; Griffith v. Jones, Law Reps. 15 Equity Cases, 279.
    V. The land was sold by boundaries and the purchasers got what was within the lines pointed out. See 20 Ohio, 445; 3 Paige, 98; 5 C. E. Green (N. J.), 266; 2 Johns., 37; 15 Id., 471; 1 Call’s Reps., 301; 2 Mumf., 179; 6 Cowen, 706 ; 1 Yerg., 16; 5 Mass., 355; 12 Eng. Rep., 399; Clure v. Lamb, L. R. 10 C. P., 334; Dalton v. Rust, 22 Texas, 135; Vorthy v. Johnston, 8 Geo., 236; 32 Id., 376; Preston v. Fryer, 38 Md. 221;. 6 C. E. Green, 123; 4 Texas, 431; 12 Id., 440; 20 Id., 429; 27 Id., 73; 9 Id., 554.
    
      Page, Abernethy & Folsom, for defendant in error.
    I. The doctrine of caveat emptor has no application to the case of sales by assignees for the benefit of creditors. Adams v. Hume, 9 Wall, 305; Burrill on Assigments (3 ed.,) § 416; 2 Hovenden on Fraud, 35; Lindeman v. Ingham, 36 Ohio St., 14; Rogers v. McLain, 31 Barb., 305; nor to rules made by the Master in Chancery; Tunno v. Flood, 1 McCord, 121; nor to mortgage and partition sales in equity; Rogers v. McLain, 31 Barb, 305; McGowen v. Wilkins, 1 Paige, 120; Carter v. Clark, 3 Edwards Ch., 428; McDonald v. Hanson, 12 Vesey, 277; Jacobs and Walker, 549; Spring v. Sandford, 7 Paige, 550; Kohler v. Kohler, 2 Edwards Ch. 69; Morris v. Mowatt, 2 Paige, 586.
    II. Courts of equity interfere to give relief where the quantity of land exceeds or falls short of that which is specified in the deed or contract of sale if the sale of the land was by the acre or foot. Morris Canal Co. v. Emmet, 9 Paige, 168; Tarbell v. Bowman, 103 Mass., 341; Pickman v. Trinity Church, 123 Mass., 1; Paine v. Upton, 87 N. Y., 327; Shovel v. Bogan, 2 Eq. Cases Abr., 688; Quesnel v. Woodleaf, 2 Hen. & Munf., 173, Note; Darling v. Osborn, 51 Vt., 148; Whaley v. Elliott, 1 A. K. Marshall, 343; Triplett v. Allen, 26 Gratt., 721; Barnes v. Gregory, (Tenn. 1858) 7 Am. L. Reg., 678; King v. Wilson, 6 Beav., 124; Stockton v. Union Oil Co., 4 West Va., 273.
    III. When a party has been induced to purchase land by the unintentional misrepresentation of the seller as to the quantity included in the boundaries, the deficiency being material, equity will rescind the contract, and this relief will be granted, though the complainant seeks relief on the ground of fraud. Belknap v. Steeley, 2 Durer, 570; Hatch v. Garzo, 7 Tex., 60; 2 Russell, 570; Post v. Leet, 8 Paige, 337; Kent v. Cureaud, 17 Md., 291; Kelly v. Allen, 34 Ala., 663; Ellis v. Hill, 6 Rich., 37; 1 Robinson (Va.), 287; 25 Ind., 489; Earl v. Bryan, Phillips’ Eq. (N. C.), 278; Nelson v. Carrington, 4 Munf., 332; Hundley v. Lyons, 5 Id., 343; Nichols v. Cooper, 2 W. Va., 347; Fall v. McCurdy, 3 Met. (Ky.), 364; Marbury v. Stinestreet, 1 Md., 147.
    
      This mistake, whatever it was, was adopted by the court and assignees, and carried into all its proceedings.
    If an individual had made a survey of land, and advertised it for sale, and shown the plat and survey to purchasers, and made as many representations as to quantity as the court did in this instance, we think there is no court of equity in the world that would not have' relieved the purchaser from the mistake.
    If it never has been established by the decision of any court that a purchaser of land under a survey made by order of the court, and brought to his notice, may rely upon it as being correct, and as containing the truth, then it is time that such a decision was made, and this court has an opportunity to establish a principle in favor of honesty and justice, and one which will meet the approbation of the average conscience of men. If, on the other hand, the court feels bound to say that a survey made by its own officer, and adopted by the court, cannot be trusted, and that caveat emptor applies in this new class of cases, then the court will take a step backwards, without its being demanded by policy, convenience or justice.
    The sale in this ease was on the personal representation of the assignees that the land had been surveyed by them and found to contain the exact amount of 360^^ acres. These representations were made by showing the plat returned by the surveyor, and his statements thereon as to the quantity.
    If relief is not granted upon the grounds first above stated, the defendants are entitled to it on the ground of mistake. This mistake was brought about by the direct action of the assignees themselves. If, after the matter had gone into their hands, the assignees had proceeded to sell the lands of Stage by the description contained in his deeds, without any survey and any statement as to quantity, it is probable the defendants would be without remedy. But the assignees went further, and surveyed the land, and made the sale by that survey. A further point to be considered by the court is that the probate court adopted the error of the surveyor and assignees, and carried the same through all its proceedings. This amounted to a representation by the surveyor, by the assignees and by the probate court that this tract of land contained the exact quantity of 360^j- acres.
    Would not any man living, except, perhaps, some lawyers, have relied upon these representations, and believed that if they were not true he would be entitled to relief?
    Will a court of equity lend its aid to sanction and ratify an error which the court has committed ? For, taking the ground that this was a judicial sale, it may be confidently claimed that but for the action of the court itself this mistake would not have occurred, and the defendants would not have been deprived so unjustly of their money. See Morris v. Mowatt, 2 Paige, 586.
    If the court intended to plant itself on the doctrine of caveat emptor, or if the assignees intended to shield themselves behind that doctrine, they should have sold the land by the description contained in Stage’s deed. They should not have meddled in this matter by making a survey, and undertaking to furnish purchasers with a correct survey and statement of the exact quantity of land. We know of no law which required them to make that survey. They volunteered to do it, and to bring it before the public, and to make, as it were, personal representations that it was correct.
    What hardship is there in requiring the purchaser to pay for the exact quantity of land which the estate owned, and no more. The estate loses nothing, and the purchaser is not defrauded by such a course. If it was for the interest of the creditors that a survey should be made of the lands previous to a sale, it is for the interest of all creditors that such sales should be conducted with fairness and honesty.
    Harrison, Olds Marsh in reply,
    made same points as their co-counsel and commented on authorities cited by counsel for defendant.
   Nash, J.

We think it is reasonably certain that at the. time the sale took place, the assignees and Stein and Dresbacb, the purchasers, supposed that the premises sold contained three hundred and sixty and acres, and were without knowledge as to the deficiency of forty acres. Can this mistake be corrected in proceedings by the assignees to foreclose the mortgages given to secure the payment of the purchase money ?

To determine this, question we must first ascertain the character of the sale. It was conducted under section 5 of the act regulating the mode of administering assignments for the benefit of creditors. [58 Ohio Laws, 105.] The land had been surveyed, appraised and offered at public sale, but had not been sold for want of bidders. All these things were done under the supervision of the probate court and in the manner provided by the statute. Then application was made to the probate court for an order to sell at private sale. The court exercising a power conferred by section 5, above referred to, and being satisfied that it would be for the advantage of the creditors of the assignors, made the order. The assignees then sold the land to Stein and Dresbach, upon the terms and under the limitations authorized by the . court. The sale was reported to the court, confirmed by the court, deeds ordered by the court and made and delivered to the purchasers in pursuance of such order. In short the assignees acted as the agents of-the court in selling the land and simply obeyed its orders, made in accordance with powers conferred by the statute regulating assignments for the benefit of creditors. This was a judicial sale — a distinguishing feature of which is that it must be confirmed by the court before it will be complete. Freeman on Void Judicial Sales, 14; 1 Bouvier’s Law Dictionary, 767; Rorer on Judicial Sales, chap. 1, p. 1, and the authorities therein cited.

As this was a judicial sale, we are of opinion that in an action by the assignees against the purchasers to foreclose the mortgage given to secure the purchase money, the purchasers cannot be made whole as to the mistake of forty acres by being given a credit of $2,000. Stein and Dresbach were charged with the duty of ascertaining for themselves the character, condition and amount of the property. Mechanics S. & B. L. Association v. O' Conner, 29 Ohio St. 651. This could have been easily done. The surveyor employed by the assignees to subdivide and plat the land made correct returns of the length of the boundary lines, and if the purchasers had made a computation from these the mistake now complained of would have been discovered. The defendants before giving their mortgages and before the sale was completed, employed a surveyor for the purpose of dividing this parcel of land into two equal parts. This he attempted to do. From these circumstances it would seem that nothing less than great carelessness could have prevented them from discovering this error.

If the purchasers had sought relief by resisting the confirmation of the sale and at a time when all parties could have been restored to their original position, it should have been granted. They do not now ask to have the original contract rescinded. It is impossible in this action to give the defendants any relief. Okill v. Whittaker, 2 Phillips Ch. Reps., 338.

The cases under consideration were in the district court on appeal. That court without making any finding upon the facts, reserved the cases upon the law and the facts to this court. We render the decree in each case which the district court should have rendered and in favor of the plaintiffs.

Decree accordingly.  