Trimble v. Herold

Johnson, Peesident, announced the opinion of the Court: It is claimed, that when some of the decrees were rendered, [611] tlie proper parties were not before the court. It appears from the extended statement made, that the proper parties were all before the court before the land was finally ordered to be sold, and before the proceeds of the sale were ordered to' be distributed. The decree will not be reversed, because all. the parties were not before the court, when every decree was made. It is enough, that the rights of no one are prejudiced in his absence. It is insisted, that the sale made on the 22d of April, 1876, ought to have been set aside, because it appears from the affidavit of the defendant ITerold and eleven others, that the lands sold for a grossly inadequate price. It appears by the decree of 12th September, 1872, that a sale of the lands was set aside, because the price, for which they sold, was inadequate; and that by. decree of May 5, 1873, the second sale of said lands was set aside, because a cloud rested on the title, as appeared by affidavits filed; that by a decree rendered on the 6th day of October, 1875, the third sale made in the cause of said lands was set aside on the upset bid of D. V. Buck-man. The fourth and last sale was made on April 22, 1876. While it has been repeatedly decided by this Court, that gross inadequacy of price alone may be a sufficient ground for setting aside a judicial sale, yet we caftnot hold, that, where there have been three sales, set aside, the first for inadequacy of price, and the third on an upset bid, the fourth would be set aside for mere inadequacy of price.' Under such circumstances the repeated sales afford a better test of the value of the land, than mere affidavits. But it is also insisted, that the report of sale ought not to have been confirmed, and that the sale should have been set aside, because the amount and priorities of the liens were not fixed, when the sale was ordered. It was error to- order the sale, when the liens and priorities, which had been fixed’by a prior decree, were by the decree ordering the sale unsettled, by the reference of the cause to a commissioner to permit credits to be proven. Will this exception to the report of sale avail the defendant? In Kable v. Mitchell, 9 W. Va. 492, it is held, that a sale by a commissioner made under a decree of a court of equity is not an absolute sale in West Virginia, and does not become absolute, until it is con [612] firmed by the court; and that the court may in the exercise of a sound discretion, either affirm or set aside the sale, where from the facts, evidence and circumstances before it, it appeared clearly the sale was made for a greatly inadequate price; that the bid made by the purchaser at the sale must be considered as his offer to the court through its commissioner, and in making it he agrees to be bound thereby, if it is accepted and approved by the coiirt; and it is discretionary with the court, whether it will accept the bid and confirm the sale, or set it aside. But this discretion is not an arbitrary one, it should be correctly exercised, as it is liable to review in the Appellate Court. If the commissioners are guilty of misconduct at the sale, by which the rights of the debtor are, materially, prejudiced, by a fair price not being obtained, this would be sufficient to set aside the sale. There is a great difference between the power of the court over the sale, before, and after confirmation. After confirmation, no error of any kind, in the decree ordering the sale, not affecting the authority of the commissioners to make it, can disturb the sale or affect the purchaser’s rights thereunder. But before the confirmation, if exception be made to the report of sale, on the ground that the court erred in the decree ordering the sale in such a manner, as was calculated to affect the bidders at the sale, and consequently, the price, at which the lands would sell, as if the sale should be ordered, before the liens and their priorities were fixed, and in support of such exception the debtor would show, that he actually suffered material injury thereby, in the lands selling for materially less, than it otherwise would, it seems to me, that the court has the power, and under such circumstances would exercise'it, to refuse to confirm the sale and set it aside. Ho presumption against the sale would be made in such a case; and'the court would only set it aside for such error’in the decree, when it was made clearly to appear, that the lands actually sold for materially less, because of such error. The court would not refuse to confirm a sale and set it aside because of an error in the decree ordering the sale, unless such error, did have the effect, to bring the lands to a sale, under such circumstances, as in fact did cause them to ’ be sold at a price materially less, than they would have [613] brought, but for such error. Hughes v. Hamilton, 19 W. Va. 366. There is nothing in this record, to show, that Herold was injured in the slightest degree by the error, in the decree ordering the sale. There is no evidence, that the property was sold for a dollar less, than it otherwise would have sold for, if such error had not been committed. No creditor came forward and testified, that he was prevented from bidding on the property, because he could not tell, whether he could have saved his debt by such bid or not, nor testified that he would have paid a certain amount more for the land, if his lien had been certainly fixed, so that his debt could have been saved by such increased payment for -the land. None of the other exceptions were t'o errors which could have in any way have affected the sale of the land, and were therefore properly overruled. The decree confirming the sale cannot be reversed. The error in the decree ordering the sale of the land could only be prejudicial to the defendant, Herold, in so far as it might affect the sale of the land; but, as the decree confirming the sale of the land cannot be disturbed, he is not now prejudiced by said decree. None of the errors assigned are to the prejudice of the defendant, Herold; and the decree complained of cannot be reversed therefor. The facts, that Mrs. Mary Herold was made a party to the suit, and that a part of the land was sold free from her contingent right ot dower, aud that the court has decided to pay her from the proceeds of the sale of the land, are not to the prejudice of the defendant, Benjamin Herold, and no one else complains of it. . For the foregoing reasons the decress rendered. in this cause which are appealed from are affirmed with costs, and thirty dollars, damages. Judges HaymoND AND Greek Cokcurred. DECREES AeEIRMED.