The opinion
Washburn, P. J.,
concurring. I fully agree not only with the conclusion reached herein, but also with the reasons set forth for such conclusion; but speaking for myself alone, I desire to give as a further reason for reaching said conclusion the following:
So far as the purchaser at a sheriff’s sale is concerned, the sheriff is acting as the agent of the court, and the transaction between the purchaser and the sheriff is not complete and binding upon the purchaser until the court, acting as principal of the sheriff, approves of and confirms the transaction between the sheriff and the purchaser.
Where the court directs the sheriff, as its agent, to sell real estate and report his execution of the order, and the sheriff does so and acts in all respects in compliance with the order, and the other party to said transaction, the purchaser, applies to the court for an approval of the acts of its agent and a completion of the transaction, and the court, wrongfully and without
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any authority to do so, refuses the request of the purchaser, and the purchaser, at a later time, renews his request, and it is again refused, and thereafter the purchaser applies to the court for a formal release from the transaction with the sheriff as the agent of the court, and the court refuses said request and confirms the transaction between its agent and the purchaser, when, between the time of such transaction and such confirmation a period of three years has elapsed and there has been such a depreciation in value of the property which was the subject of the transaction as to render it inequitable and unjust to hold the purchaser bound by such transaction, such court’s action is an abuse of discretion, regardless of whether the court, as between the mortgagor and the mortgagee, was authorized in postponing the completion of the transaction between the purchaser and the sheriff.
It is the duty of a judge to require litigants to do equity; he should also do equity himself under the circumstances disclosed by this record; and in this case, when the court had full authority to exercise its discretion in favor of the purchaser, it was its duty to have done so.