Page:Federal Reporter, 1st Series, Volume 1.djvu/271

 SBAKOY V. m'choed. 2G3 �case of fraud, or upon a conveyance with a warranty, and in such cases only. Mockhee v. Gardner, 2 Harris & Gill, 176. �I should find great difficulty in this case in holding that the assignee had bound himself personally by anything con- tained in this advertisement. He purports by this to sell "the right of redemption" of the bankrupt in the land in question, but he does not assume to guarantee that the prop- erty is not subject to other liens. Wbile it may be true that, if the bankrupt himself had put forth this advertisement and sold the land, he would be estopped to set up a ciaim of home- stead, the assignee stands in a somewhat different relation to the property. By the express provisions of the bankrupt act the bomestead did not pass to the assignee, and he had no right or authority to sell it unless by the consent and joinder of the bankrupt and his wife, which was not given in this case. �But there is another ground upon which I think the com- plainants are entitled to a qualified relief. The terms of the advertisement were somewhat ambiguous, and I have no doubt that they were misled into supposing that they had acquired a title to the property free and clear of ail encum- branees except that of the execution. It is true, that neither the bill nor the cross-bill set forth, in terms, that there was a misunderstanding as to the conditions of the sale, but taking them together it is quite apparant that there was. In such cases a court of equity has a judicial discretion to set aside the sale. Eorer on Judicial Sales, § 421; Laight v. Pell, 1 Edwards' Ch. 577; Le Fevre v. Larawdy, 22 Barb. 167; Vee- der V. Fonda, 3 Paige, 94-97. �In Anderson v. Foiilke, 2 Harris & Gill, 346, 357, it is said that in Maryland, as well as in England, "if there should be made to appear, either before or after the sale had been rat- ified, any injurious mistake, misrepresentation or fraud, the order of ratification wiU be rescinded, and the property again sent into the market and resold." This power has been frequently exercised in cases where the land was stated to be greater in quantity than it turned eut upon actual survey; or where it was sold for a greatly inadequate price; or where ��� �