Horace Harmon Lurton

“ In such a situation, the sale not being in any wise the result of collusion, nor subject to the control of such a bidder, he is as free, all deceit and fraud out of the way, as any one of the general public.
Even a trustee has been held competent to purchase the trust property at a judicial sale which he has no interest in, nor any part in bringing about, and which sale he in no way controls. ”

“ There was nothing left but for the members of the syndicate to put their hands into their own pockets and put in a large additional sum or let the encumbrances be enforced. This latter is just what happened. In such circumstances it was plainly the right of each one to take care of himself, and, if he saw fit to buy at the trust sale on the chance of making something, he was free to do so, provided only he took no undue or unfair advantage of his co-owners, and observed the rules concerning fairness at such a sale, which prevail in any circumstances. ”

“ Among those so contributing originally, or by substitution, were the trustees Croissant and Johnson, the appellant Starkweather, who was to receive, and did take, eleven shares, fully paid up, as and for part of the purchase price, and the appellee Jenner, who ultimately came to own four of such shares. The full number of thirty shares contemplated were never subscribed, six remaining unsold in the hands of the trustees. This fact, from whatever cause, seems to have led to the inability of the syndicate to pay off the encumbrances which were to be assumed and paid off as part of the price. ”

“ At most, the sale was voidable, not void, and he who would complain must seasonably elect whether he will avoid it or not. Twin-Lick Oil Co. v. Marbury, supra.
Appellant did not act with that degree of promptness which equity demands. He has slumbered over the question of whether he should elect to let Jenner hold on to his purchase or require him to give the benefit of his bargain to his contenants. A delay of not less than four years, during which there has been a large appreciation in the value of the property, is unreasonable. ”

“ Those contributing or proposing to contribute agreed among themselves, by a separate paper, that the price, including the discharge of encumbrances resting upon the property, should be $75,000, divided into shares of $2,500 each, and each person accordingly subscribed for such number of shares as they elected to take, agreeing that Croissant and Johnson should represent them as trustees in the purchase, with full power to manage, sell, and convey, receiving a commission for their service. ”

“ It is plain from the facts of this case that the scheme for exploiting this Crescent Heights property, according to the agreement exhibited by the share certificates, had practically collapsed, and that for the want of means and harmony among the owners there was no practical way of clearing the property from encumbrances, which had turned out to be about $39,000,-a sum larger than seems to have been originally supposed. ”