WELCH v. STEWART. 43
But where, without specially relying on the statute of limitations,
a defence was taken against the claim on the 10th of February,
1818, and witnesses were produced and proceedings had; and
then on the 10th of December, 1819, a plea of the statute of limi-
tations was filed and relied on. It was held, that the plea was
offered too late, and it was accordingly rejected, (h)
9th June, 1796.—HANSON, Chancellor.—The Chancellor has considered the peti-
tion of Sarah Brookes for setting aside the sale, made by the trustee of the real estate
of Benjamin Brookes, and the depositions returned, agreeably to the order for that
purpose made, and the arguments of the counsel for General Benjamin Brookes.
He finds nothing reprehensible in the conduct of the purchaser; and nothing
which can be deemed fraudulent has been proven; but it is clearly established by
the depositions, that the sale was affected by suggestions made at the time of the sale,
that thereby a person was prevented from bidding, and the land hath been sold for a
considerably less price than otherwise it might have commanded. It hath always
been a rule with the Chancellor to impress the public with an idea, that no device or
contrivance used at a sale, which requires his ratification, shall be of any avail. It
is essential to the administration of justice in this court, that this rule be inviolably
observed. Where property appears to have been sold under its value, the slightest
circumstance of fraud, combination, or management, ought to be deemed sufficient,
on the application of a party interested, to set aside the sale. As those things are
of a nature to elude detection, where little is proved, a great deal may fairly be pre-
sumed. In the present case, indeed, there does not appear to have been any fraud
or combination; but if a sale, under such circumstances, should be ratified, the
encouragement which the precedent might afford, would probably operate not only
against the interest of the parties concerned in sales, but against substantial justice
and the reputation of this tribunal.
It is therefore Ordered, that the sale made by William Marbury, trustee of the
said real estate of Benjamin Brookes deceased to General Benjamin Brookes, as stated
in his report, this day returned, be vacated and set aside; and that the bond or
bonds taken by the said trustee, on the said sale, be cancelled or delivered up to the
said General Brookes; and that the said trustee proceed to sell again the said pro-
perty on the terms and in the manner prescribed by the original decree in this
cause; and that in every thing, except giving a new bond, before, at, and after the
sale, he act as by the said decree prescribed.
On the 30th of July, 1796, a new sale having been made and reported, was after-
wards absolutely ratified and confirmed.
The auditor, on the 18th of February, 1803, made a report, in which, among other
things, he says that Stephen West's claim, account No. 6, commences early in the
year 1756, and is continued as an open account until 1776, in which time, and for
ten years afterwards, there does not appear to have been any settlement between the
parties; and the affidavit of the executrix of Stephen West appears to be defective ;
in addition to these objections the solicitor for the executrix of Benjamin Brookes
has filed exceptions to this claim herewith returned. That Benjamin Oden's claim,
account No. 9, is a judgment against the executrix, which has no proof except the
transcript of said judgment.
Sarah Brookes, widow of Benjamin Brookes, in behalf of herself and Robert
(h) McMechen v. Chase, 1 Bland, 85 n.