Sproull v. Seay

Jackson, Chief Justice.’ Important legal questions are made in this record: First, can an administrator recover from a' bidder, at his sale, the difference between the sum he bid and that which the land subsequently sold for, when again offered ? And secondly, if the second sale be delayed, and the delay is Caused by the request or agreement of the bidder, can the delay discharge his liability ? 1. That the administrator may re-sell and recover, as well as the sheriff, under section 3655 of the Code, is settled by this court. 53 Ga., 87; 54 Id., 200. 2. On the second point, this court held, in 56 Ga., 442, that “ any unreasonable delay, without the assent of the [679] bidder, would put it in the power of the estate to speculate upon the bidder by selecting: such time to re-sell as would be to the"interest of the estate and adverse to that of the bidder.” In that case, the delay'was some twelve months, and the only reason for it was, not the assent, directly or indirectly, of the bidder, but the stringency of the times. In this case, there is evidence enough, to carry to the jury the question whether or not the.postponement was made at the instance and request of the bidder; and whilst a non-suit was properly granted in Sanders vs. Bell, 56 Ga., supra, where there was no such evidence, it should not have been granted in the present case, where there is plenty of such evidence. 8. It makes no difference, in the application of the principle, that the property was offered a second time, and bid off by another for the original bidder, who also did, not pay his bid, and that it was afterwards sold the third time —all the delays being at the instance of the first bidder. The administrator may recover from the first bidder the difference between the first and last sale. 4. Nor is it necessary that the second bidder be joined in the action by the administrator, he having been only the agent to bid for the first bidder, and there being evidence that the first bidder was managing the entire transaction and importuning the administrator to wait on him to pay up for the land. 5. Nor does it alter the principle that the last sale was for cash, all the first bid being due when the last sale was made, and the whole delay being at the instance of the first bidder. These points of law must be applied to the facts and settled by a jury. The court cannot legally determine them and withhold their consideration from the jury by a non-suit. ' • Judgment reversed.