-accepting bid without opportunity for explained in both the evidence of Cooksey and Mullins, and we are at a loss to understand how Osborn's rights could have been affected in any way by the auctioneer knocking the property off to him, and presumably preventing another bid by a person suspected of being an objectionable purchaser. further bidding. It so happened that the limit of Mullins's authority to bid for Cooksey was $2,800, and when Osborn bid $2,825 he announced that was his last bid, and from this the inference is attempted to be drawn that Cooksey's directions to Mullins were intended to run the property up on Osborn. The evidence, however, is convincing that the bid of Mullins for Cooksey was in good faith, that he went to the extent authorized, and that if the property had been knocked off to Cooksey he would have taken and paid for it. This evidence is strengthened by the additional fact that Cooksey subsequently bid upon and became the purchaser of another lot. It is likewise complained that a private arrangement was made with Carter by which he was to become the purchaser of lot No. 9 adjoining No. 10 previously bought by him for his son-in-law, at the price of $2,500, and that the arrangement was carried out, although that lot when sold brought a higher price than that. The facts are that Carter, the father-in-law of Stewart, bought lot No. 10, a corner lot, and was given the right to purchase the adjoining lot No. 9 at $2,500, provided he was the last bidder, even though he was required in fact to bid a larger sum. But inasmuch as lot No. 9 was sold after the transactions involved in both the Osborn and See cases, we are unable to comprehend how any by-bidding or puffing upon that lot could have influenced either of appellants in the purchases they made. But it is said that a private arrangement was made with Burchett by which he bought lot No. 4 for $2,500, when in fact he bid $2,700 for it at the public sale. This, however, occurred after the purchase by Osborn of his two lots and before the purchase by See of lot No. 2. We are unable to see after the announcement at the sale in the first place that the seller reserved the right to reject any and all bids, why it was necessary to go through the form of a public sale to sell this lot to Burchett. It seems to have been the policy of the sellers after the corner lots were sold, and lot No. 7 adjoining one of them had been disposed of, to give the other persons who had bought corner lots the right to buy the adjoining lots at $2,500; $2,500; and this arrangement seems to have grown out of the situation developed by the selling of the first five lots at satisfactory prices, and was deemed advisable so as to insure the success of the sale. They seem to have reasoned, after the first five lots were sold, that if they could make the remaining five bring an average of $2,500 the whole would produce something over $28,000, which would pay all expenses, pay the $25,000 required by the lodge, and leave a profit for the real estate men. It appears that the lot No. 4 bought by Burchett for $2,500, but for which he actually bid $2,700, was the result of an agreement between him and the manager of the sale which was not made public, and the only difficulty we have had in the case is to determine what effect his conduct in bidding $2,700 publicly, when he had a private arrangement that he should only pay $2,500, had upon the subsequent sale of lot No. 2 to appellant See. This was long after Osborn had bought his two lots, and can in no sense be said to have influenced his bidding upon them. But there was a good faith bid upon the lot No. 4 so purchased by Burchett of a little less than $2,700 by some other bidder, and it cannot therefore be said that the secret arrangement between Burchett and the sellers could have had any mate (213 Ky. 533, 281 S. W. 500.) rial effect upon the bidders upon lots subsequently sold. There was no by-bidding upon the lot No. 2 sold to appellant See, but there was good-faith competitive bidding which required her to bid $2,825 for the same with a goodfaith bidder bidding almost that amount; and although there may be a presumption that she was influenced by fictitious bids theretofore made upon other lots in the same sale, the facts and circumstances in evidence tend strongly to rebut that presumption. In the first place, there is evidence tending to show that she stated after the sale she did not want the lot because the purchaser of an adjoining lot had too many children. And it appears that she bid exactly the same amount for this lot north of the alley as Osborn had previously bid for the corresponding lot south of the alley. Strictly speaking, a "by-bidder" is one employed by the seller or his agent to bid on the property with no purpose to become the purchaser, so that the bidding thereon may be stimulated in others who are bidding in good faith, while he is safe from risk because of a secret understanding that he shall not be bound by his bids. Story, Sales, § 482; 2 Kent, Com. p. 537; 2 R. C. L. 1128; 6 C. J. 832, 833; Burdon v. Seitz, 206 Ky. 336, 267 -"by-bidder" defined. S. W. 219. It is apparent, therefore, that Lotwithstanding Burchett had the secret arrangement with the sellers by which he was to get the property at a less price than he actually bid, he was not technically a by-bidder; and while one injuriously affected by this arrangement might have equities arising out of it, it is reasonably clear that appellant See that property shall go for eertain price-effect. seeks to be relieved -understanding from her purchase for other and different reasons, having nothing to do with this arrangement by which Burchett became the purchaser of that lot. In the first place, the an nouncement at the sale that the right was reserved to reject any and all bids appears to have made it wholly unnecessary to put up for public sale lot No. 4, at all, and that it would have been perfectly justifiable for the seller to have sold it privately to Burchett at $2,500, and not offered it at all. Not only so; it appears to be the rule that when a tract of land is divided into lots, and sales of them are made at the same time and as parts of the same transaction, while there is a presumption that the bidders on the last lots offered are influenced by fictitious bids upon the lots previously sold, such presumption may be rebutted by the facts and circumstances. 2 K. C. L. p. 1130. -rebutting presumption of influence of fictitious bids. -effect of by-bidding. Where there is only a single parcel offered at a sale held without reserve, if there is secret by-bidding the purchaser has the absolute right to repudiate the contract, and the presumption that he has been imposed upon is absolute. Burdon v. Seitz, supra. But in a sale of lots in a subdivision, where rebutting the by-bidding is imposition from upon lots sold be presumption of by-bidding. fore the one knocked off to the complainant, it is only a prima facie presumption which may be rebutted. Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332. In that case (p. 340, 19 Am. Rep. [114 Mass. 196]) the court said: "The designed and natural effect of by-bidding upon the lots first sold is to mislead the judgment of the buyers as to the value of the whole tract, and to induce them to bid more than they would upon a fair sale. There is a presumption that the last bidders are influenced and injured by the previous fictitious bids, and they may avoid the sale without further proof that they are influenced and injured, if there is no evidence tending to control or rebut such presumption. But this presumption I. Rule in England. The rule laid down by the English law courts is that the employment of a puffer or by-bidder at an auction sale is fraud, which invalidates the sale at the option of a bona fide buyer. This view was first announced by Lord Mansfield in Bexwell V. Christie (1776) Cowp. pt. 1, p. 395, 98 Eng. Reprint, 1150, wherein he said: "The matter in question is in itself of small value; but, in respect of the principles by which it must be governed, it is a question of great importance. Since the trial, I have mooted the point with many who are not lawyers, upon the morality and rectitude of the transaction. The question is whether a bidding by the owner of goods at a sale under these conditions, namely, 'that the highest bidder shall be the purchaser, and if a dispute arise, to be decided by a majority of the persons present,' is a bidding within the meaning of such conditions of sale. There is no express undertaking on the part of the defendant, nor is it, as has been ingeniously said, a direction that there should be no bidding under £151 which might be fair; but the direction given to the defendant is 'not to let the horse go under £151;' which implies there might be a bidding under that sum. The question then is whether the owner can privately employ another person to bid for him. The basis of all dealings ought to be good faith; so, more especially in these transactions, where the public are brought together upon a confidence that the articles set up to sale will be disposed of to the highest real bidder; that could never be the case, if the owner might secretly and privately enhance the price, by a person employed for that purpose; yet tricks and practices of this kind daily increase, and grow so frequent, that good men give in to the ways of the bad and dishonest in their own defense. But such a practice was never openly avowed. An owner of goods set up to sale at an auction never yet bid in the room himself. If such practice were allowed, no one would bid. It is fraud upon the sale and upon the public. The disallowing it is no hardship upon the owner. For if he is unwilling his goods should go at an under price, he may order them to be set up at his own price, and not lower; such a direction would be fair; or he might do as was done by Lord Ashburnham, who sold a large estate by auction; he had it inserted in the conditions of sale that he himself might bid once in the course of the sale; and he bid at once £15,000 and £20,000. Such a condition is fair; because the public are then apprised and know upon what terms they bid. In Holland it is the practice to bid downwards. Therefore, upon full consideration, I am of opinion that a bidding by the owner in the manner contended for, and agreeable to the directions given in this case, would have been a fraud upon the sale; and, consequently, that this action against the defendant as auctioneer cannot be maintained." The subsequent cases on the law side have followed Bexwell v. Christie, supra. See Howard v. Castle (1796) 6 T. R. 642, 101 Eng. Reprint, 748; Walker v. Nightingale (1826) 4 Bro. P. C. 193, 2 Eng. Reprint, 132; Crowder v. Austin (1826) 3 Bing. 368, 130 Eng. Reprint, 555; Wheeler v. Collier (1827) Moody & M. 123; Rex v. Marsh (1829) 3 Younge & J. 331, 148 Eng. Reprint, 1206; Thornett v. Haines (1846) 15 Mees. & W. 367, 153 Eng. Reprint, 892; Warlow v. Harrison (1858) 1 El. & El. 295, 118 Eng. Re-, print, 447; Green V. Baverstock (1863) 14 C. B. N. S. 205, 143 Eng. Reprint, 424. The doctrine laid down by Lord Mansfield was in Howard v. Castle (1796) 6 T. R. 642, 101 Eng. Reprint, 748, supra, said by Lord Kenyon to be founded "on the noblest principles of morality and justice." The courts of equity, primarily in aid of their own sales, instituted at an early date the rule that a vendor might employ a by-bidder as a defensive precaution to prevent a sacrifice of his property, and that all that was required of him was that he should act in good faith, and, in pursuance of that rule, orders for auction sales in chancery usually permitted the employment of one puffer. Bramley_v. Alt (1798) 3 Ves. Jr. 620, 30 Eng. Reprint, 1186; Conolly v. Parsons (1797) 3 Ves. Jr. 625, note, 30 Eng. Reprint, 1188, note; Smith v. Clark (1906) 12 Ves, Jr. 477, 33 Eng. Reprint, 180; Flint v. Woodin (1852) 9 Hare, 618, 68 Eng. Reprint, 660; Mortimer v. Bell (1865) L. R. 1 Ch. 10. Even in chancery an announcement of a sale "without reserve" excluded the use of puffers. Meadows v. Tanner (1820) 5 Madd. Ch. 34, 56 Eng. Reprint, 807; Robinson v. Wall (1847) 2 Phill. Ch. 372, 41 Eng. Reprint, 986. In 1867, an act of Parliament, 30 & 31 Vict. chap. 48, was passed, which, after reciting the existing conflict of view and declaring it to be desirable that the rule should be settled, provided as follows: "That the particulars or conditions of sale by auction of any land shall state whether such land will be sold without reserve, or subject to a reserved price, or whether a right to bid is reserved. If it is stated that such land will be sold without reserve, or to that effect, then it shall not be lawful for the seller to employ any person to bid at such sale, or for the auctioneer to take knowingly any bidding from any such person.' In Gilliat v. Gilliat (1869) L. R. 9 Eq. 60, the court held under that act that, on a sale of real estate by auction, under conditions stating that the sale is subject to a reserved bidding, it is illegal to employ a person to bid up to a reserved price unless the right to do so is expressly stipulated for. The court said: "I think the act makes a distinction between a reserved bidding and a reserved right to bid. It says that you must state whether there is a reserved price or not, and, further, if you state that there is a reserved price, you must also state that a right to bid is reserved in order that you may employ a person to bid on your behalf. Therefore this sale must be set aside." It is to be observed that, with respect to auction sales of personalty, § 58 of the English Sale of Goods Act (56 & 57 Vict. chap. 71), which is substantially identical with § 21 of the Uniform Sales Act, provides that, unless a right so to bid is expressly reserved, a bid at an auction sale by or on behalf of the seller is a fraud. II. Rule in United States. a. Majority rule stated. In the United States it is held by the great weight of authority that, unless a right in the seller to bid is re Delaware. (1863) 2 Houst. 559, 83 Am. Dec. 168. Georgia. Locke v. Willingham (1896) 99 Ga. 297, 25 S. E. 693; McMillan v. Harris (1900) 110 Ga. 72, 48 L.R.A. 345, 78 Am. St. Rep. 93, 35 S. E. 334. Compare Beasley v. Burton (1924) 32 Ga. App. 727, 124 S. E. 368. Indiana. See Bunts v. Cole (1844) 7 Blackf. 265, 41 Am. Dec. 226 (dictum). Miller v. Baynard Kentucky. Burdon v. Seitz (1924) 206 Ky. 336, 267 S. W. 219. See also Newman v. Woolley (1923) 201 Ky. 139, 255 S. W. 1050; Manuel v. Haselden (1925) 206 Ky. 796, 268 S. W. 554. And see the reported case (OSBORN V. APPERSON LODGE, ante, 117). -- Louisiana. Baham v. Bach (1839) 13 La. 287, 33 Am. Dec. 561. Maryland. Moncrieff v. Goldsborough (1799) 4 Harr. & McH. 281, 1 Am. Dec. 407. Compare Williams's Case (1828) 3 Bland Ch. 186. Massachusetts. Curtis v. Aspinwall (1873) 114 Mass. 187, 19 Am. Rep. 332. Missouri.-Wooton v. Hinkle (1855) 20 Mo. 290 (dictum); Springer v. Kleinsorge (1884) 83 Mo. 152. New Hampshire. Bellows v. Russell (1845) 20 N. H. 427, 51 Am. Dec. 238 (dictum); Towle v. Leavitt (1851) 23 N. H. 360, 55 Am. Dec. 195. New Jersey. National Bank v. Sprague (1869) 20 N. J. Eq. 159 (dictum). New York. National F. Ins. Co. v. Loomis (1845) 11 Paige, 431; Trust v. Delaplaine (1854) 3 E. D. Smith, 219; Bowman v. McClenahan (1897) 20 App. Div. 346, 46 N. Y. Supp. 945; Gregory v. United States Fidelity & G. Co. (1904) 45 Misc. 112, 91 N. Y Supp. 595; Cerreta v. Costello (1925) 212 App. Div. 687, 209 N. Y. Supp. 257. North Carolina. Morehead v. Hunt (1826) 16 N. C. (1 Dev. Eq.) 35; Woods v. Hall (1830) 16 N. C. (1 Dev. Eq.) 415; McDowell v. Simms (1852) 45 N. C. (Busbee, Eq.) 130, 57 Am. Dec. 595. Walsh v. Barton (1873) 24 Donaldson V. Ohio. Ohio St. 28. Pennsylvania. M'Roy (1811) 1 Browne, 346; Pennock's Appeal (1850) 14 Pa. 446, 53 Am. Dec. 561 (overruling Steele v. Ellmaker (1824) 11 Serg. & R. 86); Staines v. Shore (1851) 16 Pa. 200, 55 Am. Dec. 492; Yerkes v. Wilson (1870) 81 Pa. 9; Flannery v. Jones (1897) 180 Pa. 338, 57 Am. St. Rep. 648, 36 Atl. 856; Rafferty v. Norris (1900) 12 Pa. Super. Ct. 450. Rhode Island. Hartwell v. Gurney (1888) 16 R. I. 78, 13 Atl. 113; Freeman v. Poole (1915) 37 R. I. 489, L.R.A.1917A, 63, 93 Atl. 786, Ann. Cas. 1918A, 841. Virginia. Hinde v. Pendleton (1791) Wythe, 354. West Virginia.-Peck v. List (1883) 23 W. Va. 338, 48 Am. Rep. 398. The American courts have quite consistently refused to recognize the former English chancery rule, that an owner may employ a by-bidder to prevent a sacrifice of his property, though not to enhance the price unduly. The owner's remedy is to fix publicly a publicly a minimum selling price. Towle v. Leavitt (1851) 23 N. H. 360, 55 Am. Dec. 195; Bowman v. McClenahan (1897) 20 App. Div. 346, 46 N. Y. Supp. 945. In Towle v. Leavitt (N. H.) supra, it was said: "If it be said that the property may be sacrificed for the want of bidders, as is declared in some of the cases in equity, the answer is that the owner may withdraw it before the sale commences, or he may set it up at a specified sum, or he may announce that he will reserve the right to make one bid himself. If an auctioneer receive property, with directions not to sell under such a price, he should so state on setting it up, or he should reserve one bid to himself. The owner of the property has no right to complain at such a course, because it is the only course that comports with the truth. If those who wish to have their property sold at auction are not willing that it should be done in a fair, open, and honorable |