Page:Federal Reporter, 1st Series, Volume 1.djvu/269

SEAROï V. m'OHOED. Si61 �Sbarcy & ScHusTBR V. MoChord, Assignec, etc. �(District Court, D. Keniucky. March 4, 1880.) �Sale — MisTAKE— Assignee in Bakkeuptct. — A court of equity will set aside a sale by an assignee in bankruptcy wheie the purchaser has been innocently misled by the advertised notice of the sale. �In equity. Bill and cross-bill for specifie performance. The bankrupt, Hardesty, was the owner of 180|- acres of land in Washington county. Under an execution issued on a re- plevin bond the whole tract was, prior to the commencement of bankruptcy proceedings, sold for less than two-thirds of its appraised value to a man by the name of Hardin. Before the expiration of the year which Hardesty had for redemption he became a bankrupt, and defendant, McChord, was chosen assignee. McChord thereupon advertised, by printed hand- bills, that on a certain day he would sell at public auction "the right of redemption of said Hardesty in 1801 acres of land, upon vrhich said Hardesty now lives, situated in Wash- ington county, etc. Said farm is in a high state of cultiva- tion, and there is a good frame house and ail necessary otit- buildings thereon. Terms of sale : The right of redemption in the land, and the store-house, will be sold on a credit of three months, with interest from date, etc." �At the time and place mentioned in the advertisement he put the property up at public auction, and struck it off to the complainants at $1,270. Complainants thereupon gave the assignee a note for this amount, and paid to Hardin, the purchaser at the execution sale, the amount pai'd by him at such sale, and 10 per cent, interest, amounting to $880. At the maturity of their sale bond the assignee insisted that the complainants were bound to take the property at $1,270, subject not only to the lien of Hardin, the purchaser at the execution sale, but also to the homestead right claimed by the bankrupt and bis wife, and that they had no right to have this homestead right satisfied out of the proceeds of the sale. �The prayer of the bill is either for a specifie performance — that is, a conveyance from the assignee free from the home- stead, in case Hardesty and wife could be induced to make a ��� �