Plaintiffs bring this proceeding to compel the defendant, James P. Walden, the highest bidder at a sheriff's sale in a partition suit, to complete the purchase of property bid in at the sale by payment of the balance of $40,000 plus interest and charges due. The defendant counterclaims to set aside the sale, and for a return of his deposit of $5,000, or in the alternative for an abatement of part of the purchase price.
It is undisputed that the plaintiffs instituted the action for the partition of real property located in the Township of Rochelle Park; that on November 25, 1959 a judgment was entered directing the sheriff to sell the property at public sale, and that on February 8, 1960 the sheriff sold the property in accordance with law to the defendant, who was the highest bidder. Thereafter the sale was confirmed by this court but defendant refused to accept the deed and pay the balance due.
Defendant contends that there existed a mutual mistake of fact between plaintiffs and defendant concerning the dimensions, location and quantity of the land to be sold; that he relied upon representations made on behalf of the plaintiffs pertaining to the same; that the premises sold were smaller in size than represented, and that the title was unmarketable.
The pertinent facts are as follows. On July 10, 1959, seven months before the sale, George Kauper, plaintiffs' attorney, telephoned Arcola Pool, Inc., an adjoining landowner to advise the property owner of the pending partition suit in order to interest the corporation in bidding at the prospective sheriff's sale. The defendant, James P. Walden,
president of Arcola Pool, Inc., engaged in the telephone conversation and asked Kauper if he had a survey of the property which was to be sold. Kauper replied that he had none but that he did have a "sketch" of the property which had been attached to an earlier appraisal, and that he would send him a copy of it "for what it is worth." Defendant thereupon requested Kauper to let him know when the sale would take place and Kauper agreed. Kauper thereupon mailed to Arcola Pool, Inc., the copy of the aforesaid sketch.
Subsequently on January 5, 1960, Kauper sent a letter to Arcola Pool, Inc., advising that the sheriff's sale would be held on February 8, 1960.
With the exception of the foregoing telephone conversation and said letters, Kauper had no further contact with the defendant or Arcola Pool, Inc. When one Alfred Kiefer, defendant's attorney, telephoned him a few days before the sale to discuss the prospective sale, Kiefer refused to reveal to Kauper the name of his client. The defendant did not attend the sale in person, and it was not until Kiefer had made the highest bid and had become entitled to the purchase that Kauper or plaintiffs learned that the defendant had become the successful bidder.
Following receipt of the "sketch" from Kauper in July 1959, the defendant examined the tax assessment map of the Township of Rochelle Park where he found that the sketch was a copy of the property as appeared on said map.
The property involved consisted of three contiguous tracts, and the notices of sale published by the sheriff contained descriptions of the tracts by metes and bounds taken from the title deeds of said property. The first and second tracts, which adjoined West Passaic Street, contained metes and bounds courses which extended to and ran along the center line of said street, being subject to the public easement of the public street. It did not contain a course extending along the westerly side line of West Passaic Street, which side line was within the boundaries set forth in the metes
and bounds descriptions. The sheriff sold the three tracts thus described as one parcel and spirited bidding took place resulting in ...