Hilleary v. Thompson

Johnson, Judge: A number of objections were made to the confirmation of the sale, which appear upon the face of the record and will be considered in the following order: First. That different impressions existed at the sale as to what was really offered, whether the land alone, or the land with the growing crop thereon, no announcement being at the time made by the commissioners whether, or not, the landlord’s share of the growing crop of corn on the land was, or was not, to be included in the sale. Second. That the auctioneer himself bid upon the land; or that there was no competing bidding for several bids before the sale was closed. Third. That the confirmation of the sale was by the court made conditional upon the purchaser surrendering any claim to the landlord’s share of the crop of corn on the land. Fourth. That the price for which the land sold was inadequate. As to the first ground, whether the objection is good or bad, depends upon whether the fairness of the sale was thereby interfered with. Any mistake or misunderstanding between the persons conducting the sale and intended bidders or parties in interest, and any accident,' fraud or other circumstance, by which interests are prejudiced, without the fault of the injured party or parties, will be deemed sufficient cause for refusing confirmation, and ordering a re-sale. Rorer on Judicial Sales, 57. It is true, that when land is sold with a crop growing upon' it, the purchaser takes the crop at the purchase, unless it [118] *s excepted. But the very fact that it may be excepted, makes-it the duty of the commissioners who make the sa}e^ jn some way indicate whether or not it will be gcqq land. In this case, as the decree shows, nothing was said by the commissioners, at the time of the sale or before, as to whether or not the growing crop would be reserved; and we may infer from the decree that the purchaser claimed that he bought it, as the court, before it confirmed the sale required the purchaser to relinquish any claim to the growing crop. There seems to have been a misunderstanding at the sale, as to whether the growing crop was excepted; and that fact would directly tend to interfere with a proper competition among the bidders. The second objection is that the auctioneer himself bid on the land; or that there was no competing bidding for several bids before the sale was made. The auctioneer in his affidavit, says: “There was no competing bidding for the said tract for several bids anterior to that at which the sale was made io the said Roberts at $26.00 per acre.” If there was no competing bidding, there was “ sham” bidding, either by the auctioneer himself, or some one with his knowledge. An auctioneer or crier malting a sale cannot properly act for himself or any other person, in bidding for the property. Brock v. Rice et al., 27 Gratt. 812. It was manifestly improper for the auctioneer to receive any but real bids. It may be said that the debtor cannot complain of this, as he received a higher bid thereby. How do we know that ? If the bystanders, saw that the auctionee rwas conducting the sale for himself and bidder too; that he was crying bids that were not made; it would not be likely that they would bid at all; the direct result of such a course would be to discourage bidding. When men attend a judicial sale, they expect'fair and open competition; and if they discover that the bids are not of that character, they will be apt to refuse to bid at all; and that would surely be to the prejudice of the debtor. [119] The third objection is, that the confirmation of the sale was made conditional upon the purchaser surrendering any claim to the landlord’s share of the growing crop. If the sale had been in all other respects fair, would be an error, of which Roberts could have made just complaint; but in that case, would not be an error to the prejudice of the debtor, as it would make the land bring more money. The fourth and last objection is, that the price for which the land sold was inadequate. There has been much discussion by the courts as to when a court will set aside a sale on the ground of inadequacy of price. I shall’not discuss that question here, or review the authorities. The rule has been settled in our state by this Court.after a review of many of the cases. In Kable v. Mitchell, 9 W. Va., 492, Judge Haymond says : “ I think it is clear1, from the authorities I have cited, that a sale by commissioners, made under a decree of a court of equity, is not an absolute sale in Virginia or in this state, and that it does not become absolute, until the sale is confirmed by the court; that the court may in the exercise of a sound discretion either affirm or set aside the sale, or direct the biddings to be re-opened, where from the facts and evidence and circumstances beforejit, it appears clearly that the sale was made at a greatly inadequate price; that the court may solve and determine this question upon affidavits or depositions in connection with the fact that a greatly larger price is offered to the court for the land, and secured, or offered to be secured, as was done in this case by Mitchell, who made the offer; or it may be done by any evidence or fact or facts before it, which clearly shows that the land sold at a greatly less price than it was worth. In this cause were four affidavits read by the court, as the decree shows, on the hearing of the motion to set aside the sale on the ground that the price was inadequate. There are a number more affidavits and depositions accompanying the record to the same point, which are no [120] Par^ of the record, as they are not referred to in any decree or order entered in the cause. The affidavits read, aj[ show that the land was worth not less than $40.00 per acre, and one that it was worth $50.00 per acre. No counter affidavits were taken; so it appears that the land sold for only about two-thirds of its value. It is true the land had once betore been exposed for sale, and was sold at precisely the same price; and this fact is much relied on by counsel for appellee, Roberts, who seems anxious to have the land at the price he bought it, to show that the land sold for what it was reasonably worth. It will be observed from the facts in this case, that at both sales the other lands in the decree ordered to be sold were withdrawn for want of bidders. "W ill it be argued that those lands are worth nothing, because no one at either sale would bid on them ? Under all the circumstances of this case; the misunderstanding at the sale, the conduct of the auctioneer, and the inadequacy of the price bid for the land, when we take into consideration that a court, in acting upon a report of sale, does not exercise an arbitrary but a sound legal discretion in the interests of fairness and prudence and with a just regard to the rights of all concerned, we think the court erred in confirming said sale. We do not undertake to say how many times a sale should be set aside for inadequacy of price. After a reasonable number of times having been exposed to a fair sale, we will not undertake to say that the failure to obtain a better price might outweigh other evidence as to the price of the land being inadequate. For the foregoing reasons so much of the decree of the circuit court of Jefferson county rendered in this cause, on the 16th day oi November 1875, as confirms the sale made by the commissioners, Travers, Baylor and Trapnell, to John W. Roberts at $26.00 per acre, and as disposes of the proceeds of the sale thereof, and as otherwise relates to said sale and confirmation, is reversed, with costs to the appellant; and said report of sale is disaffirmed and the [121] sale set aside; and tbis cause is remanded to tbe circuit court of Jefferson county, witb instructions to order are-sale of said property, unless the defendant pay tbe debts charged upon it in such reasonable time as the court may direct; and for further proceedings to be had therein, according to the principles of this opinion, and the rules •governing courts of equity. Decree Reversed and cause remanded.