Sowards v. Pritchett

Mr. Chief Justice Walker delivered the opinion of the court: At the April term, 1863, of the Woodford Circuit Court, plaintiff' in error obtained a decree against defendants in error, authorizing him to sell the land in controversy, under the last will of Henry Sowards, deceased. A sale was made, and afterwards, at the August term of the court, 1864, he filed his report and asked its approval. Exceptions were taken to the sale, and on a hearing they were allowed, the sale set aside, and a new sale ordered. To reverse that decree, this writ of error is prosecuted. The objections taken to the report of the sale, are, that insufficient notices were given of the time, place and the terms of the sale, and that the property was sold at a sacrifice. It appears that five notices of the sale were posted, hut whether they were in the most public places in the neighborhood, as required by the decree, does not appear. The affidavits in support of the validity of the sale particularly state where they were posted, but fail to say that they were the most public places. Two were posted at school-houses, but it fails to appear whether they were occupied by schools at the time; but even if they were, we are not prepared to say that we could judicially know that they would afford notice to a single man in the neighborhood. The object of giving notice is that persons desiring to purchase may learn the time and place of sale, and whether these notices were calculated to convey such information does not appear. The other notices are stated in the affidavits - to have been posted on roads, but whéther two of them were public roads is not stated. The other, however, was stated to be a public road, which would rather seem to imply that the other two were not, or it would have been stated. Six different persons testify that they were expecting a sale, some of them wishing to purchase the lands, aud were looking for notices, but saw none. They all lived near to, and some of them adjoining, the land, and if the most public places had been selected, it is strange that so many persons seeking notice, were unable to obtain it. They, from that fact, state it as their opinion, that notices were not posted. The clerk, the sheriff and the deputy sheriff all testify, that a notice of the sale was not posted at the court-house; nor is there any pretence that such a notice "was published in a county newspaper. Here was a large and valuable property to be sold at auction without redemption, and we find half a dozen of the near neighbors having no notice of the sale. If the number of notices required by the decree had been posted in the most public places in the neighborhood, could it be that none of them ever saw or heard of them. To us it seems almost impossible. Hor does it appear, that more than one witness was introduced to prove that they had seen the notices, or that they were posted. Nor does it appear that any considerable number of persons were present when the sale was made. It is true, the auctioneer swears that there were several, but he does not give the number. If there were two or three persons at the sale, this statement would be true. For aught that appears, they may have consisted of the executor, the auctioneer and the purchaser. And whether the want of notice'operated to prevent competition at the sale, or was by design or accident, can make no difference. Again, but twenty days’ notice was given. And whilst the decree fixes no time, it is the object of the law to obtain the best price that can be fairly had at such sales, and as far as possible prevent a sacrifice of the rights of the owners. In ordinary sales of real estate by executors and administrators, the Statute requires six weeks’ notice to be given, by posting notices in four of the most public places in the county, and a similar notice to be published in the nearest newspaper. It would, therefore, seem to be regarded by the Legislature that this is but a reasonable notice. So far as we are aware, it has never been the practice of courts to make irredeemable sales of real estate on so short a notice. And whilst such a notice might not, of itself, be sufficient ground to set aside a sale, yet, when connected with inadequacy of* price, or other irregularity in conducting: the sale, it will be regarded as an important circumstance. The evidence, we think, abundantly shows that the laud was not sold for more, or but little more, than two-thirds of its value. And although such an inadequacy of price would not alone be ground to set aside a sale, yet it will have its weight when considered with other evidence, in withholding an approval of the Master’s report of the sale. Although it is the duty of the Chancellor to protect a purchaser at a Master’s or Commissioner’s sale, it is equally his duty to prevent a sacrifice of the property, by fraud, accident or negligence of the officer in conducting the sale. If he can see that the sale has not been fairly made, by reason of a noncompliance with the law or the terms of the decree, and loss would result to the owner, he should not hesitate to withhold his approval. It is a cherished object of courts to give stability to judicial sales, and at the same time, as far as possible, protect and guard the rights of the owner. In all such eases the Chancellor is necessarily vested with a large discretion, and he must so exercise it as will promote justice and protect the rights of parties. And in the exercise of that discretion this court mil not interfere if it seems to have been soundly exercised. We will only reverse when we can see from all the circumstances that wrong or injustice has been done. We are clearly of the opinion, that the court below committed no error in withholding an approval of the report of the sale, and in setting it aside, and ordering the land to be again sold. And we are of the opinion, that it is much the better practice for the Chancellor, in ordering sales of property, to fix the time and manner in which notice shall be given, together with the terms and conditions of the sale. Such directions would control the action of the Master, and would greatly diminish the probabilities of having sales set aside. It would operate to assure the purchaser that his bid would be received, if there was no departure from the requirements of the decree in conducting the sale, and thereby tend to increase the price of property thus sold. It would remove all question as to whether the Master was exercising a proper discretion in making the sale. For aught that appears, it may have been a question in the mind of the purchaser whether twenty days’ notice was sufficient for such a sale, and may have operated to depress the price. The decree of the court below must be affirmed. Decree affirmed.