Tompkins v. Deyerle

Buchanan, J., delivered the opinion of the court. At the May term, 1884, of the Circuit Court for Montgomery county, a decree was entered in the case of Northeross v. Davis" Heirs, directing James C. Taylor and George G. Junkin, who were appointed commissioners for the purpose, to sell certain real estate, and providing that either or both of them might act, but before doing so they should execute bond in the penalty of five hundred dollars, conditioned as the law directs. They advertised the land directed to be sold, appending to their advertisement of sale the clerk’s certificate that the bond required had been given. One parcel of the land was purchased by George T. Gross, who paid the cash payment required, and executed bonds for the deferred payments, with A. T. Gross and A. J. Deyerle as his sureties. This sale, with another made under that advertisement, was reported to and confirmed by the court at its November term, 1884. At the same term of the court George G. Junkin, one of the commissioners to sell, was appointed receiver to collect all sale and rent bonds due under the proceedings in that cause, and was required to give bond in the penalty of ten thousand dollars. The receiver failed to give bond. — 221 — At the May term, 1887, of the court, the receiver reported to the court that Gross was in default in the payment of the purchase money due from him, and that notices had been served upon him and his sureties for a resale of the land purchased by him. At the same term of the court a decree was entered directing George G. Junldn, as commissioner, to resell the Gross land at the risk and charges of Gross and his sureties, on the terms of one-fourth cash, and the residue on a credit of six, twelve, and eighteen months, after advertising as required by the original decree for sale. That decree did not require Junkin to give bond before selling. The land was advertised and sold by Junkin, as commissioner, and A. J. Deyerle, one of the sureties on Gross’ purchase money bonds, and John H. Northcross became the purchasers, paid the cash payment, and for the residue executed bonds with sureties. This sale was reported to the court and confirmed at its November term, 1887. No order was made for the collection of those bonds until the May term, 1895, of the court, when the appellant was appointed receiver and directed to collect them. It subsequently appeared that the said Junkin had, before the appellant’s appointment as receiver, collected fromDeyerle andNorthcross the whole of the purchase money due from them, and had failed to account for a large part thereof to the parties entitled. After various proceedings had, which it is unnecessary here to state, the court held that the payments made by Deyerle and Northcross to Junldn were valid payments, and discharged them and the land purchased by them from further liability to the extent of such payments. From that decree this appeal was granted, upon the petition of the receiver. Two errors are assigned, but they both raise the same question, and that is, the propriety of the court’s action in holding that the payments to Junldn by Deyerle and Northcross were valid payments. Unless the appellees come within the provisions of the Act of — 222 — February 25, 1884 (Acts 1883-4, p. 213), now found in chapter 167 of the Code of 1887 (sections 3398 to 3402, inclusive), their payments to Iunkin, who had no authority either as commissioner or as receiver to collect the purchase money bonds due from them, were clearly invalid. That act was construed in part by this court in Pulliam v. Tompkins, 99 Va. 602, 604, 605, 39 S. E. 221, a controversy growing out of the same case as does this appeal. The first section of the act provides that no special commissioner appointed by a court to make sale of land shall execute the decree until he shall have given bond in such penalty as the court shall fix, with security to be approved by the court or clerk thereof, and that no such commissioner shall advertise the sale of land without first obtaining from said clerk a certificate that the bond required by law, or by the decree, has been executed, and appending such certificate or a copy thereof to the advertisement. The second section provides that when such certificate has been published with an advertisement of sale, any person purchasing such land in pursuance of such advertisement shall be relieved from all liability for the purchase money or any part thereof which he may pay to any special commissioner as to whom proper certificate shall have been appended to such advertisement. The fifth section provides that the commissioner or commissioners appointed to make the sale shall receive and collect all the purchase money, unless by decree of court some other person is appointed to collect the same, in which event the clerk is required to issue notice of such appointment to the purchaser, to be served as other notices are served, provided that if any payment is made to a special commissioner making the sale before the purchaser has notice of the appointment of another person, such special commissioner and his sureties shall be responsible for the money so paid, and the purchaser shall not be responsible therefor. In order for a purchaser of land sold by a commissioner of court under a decree, which directed the sale to be advertised, to — 223 — bring himself within the provisions of that act so as to be protected from paying a second time where he has paid his purchase money to a person not empowered to receive it, and who has failed properly to account for it, he must show that there was appended to the advertisement of the sale at which he purchased the certificate of the clerk, showing that the bond required by law or the decree of the court had been given. Ho bond was required by the decree directing the resale. Whether this was because the court was of opinion that the bond required by the decree of the May term, 1884, appointing Taylor and Junkin, or either of them, to sell, was sufficient to authorize a resale by Junkin, commissioner, or that the bond he was required to give as receiver to collect would protect all parties on the resale, or the not requiring a bond was a mere oversight of the court, is not material. The fact that no certificate was appended to the advertisement of the sale at which D eyerie and Yorth cross purchased ought to have, and in contemplation of law did, put them on inquiry as to the authority of Junkin to collect the purchase money bonds executed by them. The Act of February 25, 1884, was not intended to protect, and does not protect, purchasers of lands at judicial sales in their payments of purchase money to persons not authorized to receive it, and who fail properly to account for it, unless the facts exist upon which this protection is by the act made to depend. The fact that the sale at which Deyerle and Yorthcross purchased was a resale does not protect them. The language of the act applies to all judicial sales made by special commissioners, appointed by decree or order of court to sell land. It is just as important that the parties in interest should be protected by a proper bond on a resale as on an original sale. In saying this, however, it is not to be understood that the court may not require the special commissioner appointed to make the original sale, to give bond sufficiently broad to cover not only the original sale, but any resale made by him. This is the practice in some — 224 — of the circuits of the State. If such bond be required and given under the original decree of sale, there would be no difficulty in the clerk making the required certificate and in the special commissioner appending it to his advertisement of resale. The appellees’ counsel insist that if Deyerle had paid the purchase money bonds of Gross, upon which he was surety, to Jun-kin, commissioner, without a resale of the land, the payment would have been valid, under the decision in Pulliam v. Tompkins, Receiver, supra, and that as the resale at which the appellees purchased was to collect the same debt, its payment after the resale must also be valid, since the said commissioner was expressly authorized to “receive and collect.” Conceding that if Deyerle had paid his principal’s debt to Junkin, commissioner, without a resale, his payment would have been valid, it by no means follows that a payment of the resale purchase money bonds by the appellees to Junkin, commissioner, was valid. One of the vices of the appellees’ contention is that Junkin, commissioner, was authorized to “receive and collect” purchase money bonds given by Gross, upon which Deyerle was surety. Junkin was not authorized to receive and collect either the purchase money bonds given at the original sale, or those given at the resale. By the terms of section 5 of the Act of February 24, 1884, the commissioner to sell is authorized to receive and collect all the purchase money, unless by decree or order some other person be appointed to collect the same, in which case the court shall require of such person bond in such penalty as it may see fit. In this case, Taylor and Junkin, commissioners, had no authority to “receive and collect” the purchase money bonds for the land sold by them, because the court at the very term at which it confirmed the sales made by them appointed Junkin receiver, to collect those bonds. After the decree was entered appointing Junkin receiver, neither Taylor and Junkin, as commissioners, nor either of them, had any authority as such to receive and collect said bonds. The — 225 — decision in Pulliam v. Tompkins, Receiver, was not based upon the ground that Junkin, commissioner, had any authority or right to collect the Barnett bonds, but upon the ground that the certificate of the clerk that bond had been given as required by law was appended to the advertisement of the sale at which Barnett, Pulliam’s vendor, had purchased, that the purchase price was paid to one of the special commissioners who made the sale, and that neither Barnett nor Pulliam had notice that Junkin had been appointed receiver to collect the purchase money. The purchaser of land at a judicial sale made by a special commissioner, whether it be an original sale or a resale, must ascertain before paying the purchase money to such special commissioner, either that the special commissioner has actually given the bond required by law or that he appended to his advertisement of sale the clerk’s certificate that such bond had been given. If the purchaser can show that either of these facts exist, then he is fully protected in paying to such special commissioner until he has notice that some other person has been appointed to collect on the same. Again, this contention proves too much. If it were true that a special commissioner to sell has the right to resell the land without giving bond to cover such resale, because he has authority to “receive and collect” the original purchase price, it would follow that if at the resale the land did not bring a sufficient sum to pay the original purchase price, and it became necessary to get judgment for the deficiency, and to sell other lands of the purchaser or his sureties to pay such deficiency, the special commissioner could sell that land, and collect the purchase price without giving a new bond, and thus bind his sureties on the original bond for any default which he might make. In addition, notwithstanding Deyerle’s denial that he had notice that Junkin had been appointed receiver, it quite clearly appears from the record that he must have known that Junkin, commissioner, was not authorized to receive and collect the money due — 226 — from him, either as surety for Gross, or as purchaser of the land when resold. The decree which appointed Junkin receiver, removed Deyerle as receiver in the cause, gave a personal judgment in favor of Junkin, the new receiver, against Deyerle, and directed him to turn over all rent bonds in his hands or proceeds thereof to Junkin, the new receiver. By the report of Commissioner ITarless, settling the account of Junkin as commissioner and receiver, it appears that Deyerle, receiver, obtained credit as of May 11, 1886, for $128.94 paid or turned over to Junkin, receiver, under the decree removing the one and appointing the other receiver. But whether he had notice or not, neither he nor his co-purchaser, ISTorthcross, were justified in paying their purchase money bonds to the said Junkin, nor are they entitled to credit therefor on the purchase price of their land further than the money so paid was properly accounted for by him. ■ The decree appealed from must, therefore, be reversed and the cause remanded to the Circuit Court for further proceedings to be had in accordance with law, and not in conflict with this opinion.