Finney v. Edwards

Moncure, P., delivered the opinion of the court. The court is of opinion that there is nothing in the objection that the original suit was brought without consent of some of the parties, and that H. P. Edwards was not a party to the cause. The evidence shows that all the parties actually or impliedly consented to the suit. They were all present, in person or by representatives, at the sale of the land, and made no objection to the sale; nor, in fact, was the supplemental bill filed until more than seven years after the. sale. The objection, for the reasons alleged, was an afterthought ; and never would have been made but for the changes wrought by the result of the war. H. P. Edwards, though not a formal party to the suit (his name being inadvertently omitted), was personally present at the sale, and made no objection thereto then nor at any time afterwards, until the filing of the supplemental bill. He and the rest of the heirs at law of George Edwards, deceased, even if no express consent was given by them, are estopped by their long acquiescence and other conduct from afterwards objecting to the sale for alleged want of authority to bring the suit. Judge Gilmer was the counsel who brought the suit, and G. L. Powell and John A. Edwards, two of the parties in interest, retained him and directed him to institute the suit. If the proceedings and sale were “ void,” as alleged in the decree appealed from, the decree is manifestly wrong; for the court proceeded to give effect to the sale (although pronounced void), by requiring the purchasers to account for the land at its then present value. This is an anomaly. If the sale was “ void,” it ought to have been set aside, for [52] it could not bind anybody, and a resale should have been ordered; or at least the purchasers should have been put to their election, either to take the land at its present value and account for such value, or to have the sale rescinded. There could be no authority, on the theory of the court that the sale was “void,” to hold the purchaser peremptorily bound by it, and on terms which did not enter into the contract of purchase. But the court is of opinion that the sale was not void. It is shown to have been made by competent authority, was regular in all respects, and was fair; no fraud nor unfairness is alleged or proved. The sale should therefore have been confirmed, and the only question is, what the purchasers should have been required to pay. It is admitted on all hands that the sale was for Confederate money, and was intended by all parties to be for Confederate money. The commissioners were directed by the decree to sell “on a credit of six months, with privilege to the purchasers to pay the cash if they chose to do so.” Before acting, they were required to give bond in the penalty of forty thousand dollars, “ with condition for the faithful performance of their duties.” The bond was given, and the sale made, on the credit required (six months). Finney (the purchaser of one tract, and appellant here) paid no cash, but gave his bond with surety at six months for the amount of the purchase money. The court is of opinion that the commissioners had authority under the decree and the peculiar circumstances of this case to collect the purchase money. The decree of the 31st day of October, 1863, was for a sale of the land “ on a credit of six months, with the privilege to the purchasers to pay the cash if they choose to do so.” And it was further decreed that “before the said commissioners proceed to sell, they are to enter into bond with good se [53] curity before the clerk of this court, with condition for the faithful performance of their duties, in the sum of forty thousand dollars, and they are to report their proceedings,” &c. Whether it was intended by the decree to give to the commissioners the right to receive the purchase money of the land, not only if paid in cash at the time of the sale, but also if paid within or at the end of six months thereafter, the purchaser Finney having elected to give bond for the payment of the purchase money due by him on a credit of six months, which he was authorized to do by the said decree. This credit was manifestly given solely for his benefit. He might have given it up entirely, by the express terms of the decree, which authorized him to pay the whole amount of the purchase money in cash at the date of the sale, instead of giving his bond therefor, payable in six months. If he could give up the whole of this benefit, intended exclusively for himself, why could he not give up any part of it at his pleasure ? He would have benefit-led the heirs of George Edwards by giving up the whole credit and paying the purchase money in cash at the date of the sale, and he would have benefitted them, though in a less degree and proportionally by paying the money at any time after the sale and before the expiration of the credit of six months. Certainly express power might have been given by the decree to the commissioners to receive payment of the bond for the purchase money before it became due. Why may not the power to do so be implied from the circumstances of the case ? Such an implication is not inconsistent with the terms of the decree or any of them, but perfectly consistent therewith. The bond which was required of and given by the commissioners was amply sufficient to cover the case; whether it was intended to apply only to the case of payment of the purchase money in cash at the time of the sale or also to the case of its payment at any time within or at the end of six months thereafter, ac [54] cording to the election of the purchaser under the decree. If the hond given by the commissioners did not have that effect, a new decree would have been necessary, giving them or some other persons power to collect the bond and apply the proceeds. But no such decree ever was made, and the commissioners already appointed and all the parties concerned, including the purchaser, acted on the concession that the said commissioners had the power, and it was their duty, to collect the bond and apply the proceeds according to the rights of the parties. No objection to their power and duty to do so was made by any party concerned, but the same were acquiesced in by every such party until the 2d day of January, 1871, the date of the institution of the suit in which the decree appealed from in this case was rendered, which day was more than seven years after the date of the sale at which said Finney became a purchaser as aforesaid—to-wit, the 27th day of November, 1863—and nearly seven years after his bond for the purchase money due by him became payable—to-wit, the 27th day of May, 1864. The court is further of opinion that the payment made by the said Finney of five thousand dollars in Confederate currency on account of the purchase money of the land bought by him as aforesaid, which became due and payable on that day, according to the terms of sale, to C. L. Powell one of the commissioners appointed to make such sale, was a valid payment to that extent, leaving due on account of the said purchase money a balance of eight thousand six hundred and eighty dollars in Confederate currency, for which balance the said Finney on that day—to-wit, the 27th day of May, 1864—gave to the said Powell, as commissioner aforesaid, a check on E. Keen, which check was intended by the said Finney and the said Powell to be payment in full of the said balance. The said Keen owed the said money, and admitted his liability for its payment, but [55] never did pay it, and the said Finney was informed by the said Powell of such non-payment, but never made any other payment on account of the said balance of the purchase money, which still remains due and payable by him—to-wit, eight thousand six hundred and eighty dollars in Confederate currency or its scaled value; and the only question is, as to the time at which the said amount is to be scaled— to-wit, whether at the date of the said sale or at the date at which the said purchase money became payable—to-wit, six months after the date of said sale as aforesaid ? The court is of opinion that the said balance due in Confederate money ought to be scaled as of its value at the date of the said sale, for which balance, with interest from the day on which the purchase money of the said land was payable—to-wit, the 27th day of May, 1864—the said Finney and the land purchased by him as aforesaid yet remain liable, and upon payment of which he or those claiming under him will be entitled to a conveyance of the said land from the heirs of the said George A. Edwards or those who may represent them. One of the two purchasers at the said sale—to-wit, Davis— did not appeal, but it seems proceeded to pay the amount decreed against him. The decree appealed from must, of course, stand as against him. But it should be reversed as to the said Finney, the appellant in this case, and remanded to the court below for further proceedings to be had therein to a final decree, in conformity with the foregoing opinion.