Runyan v. Richardson

Hart, J. (after stating the facts). This was an action by the plaintiff against the defendant to recover damages for the failure of the defendant to comply with the terms of his purchase of certain land which was ordered sold for division by a decree of a circuit court in equity in the State of Alabama. The defendant became the purchaser at the sale, and, upon his failure to pay the purchase money, the land was again ordered sold upon the same terms, and was sold for a smaller amount The issue raised by the appeal is whether or not the defendant is liable to the other tenants in common for the deficiency between his bid and that for which the land was resold. The land in question is situated in the State of Alabama, and the partition proceedings were had in a court of that State. Therefore the decisions of the Supreme Court of that State must govern. Robertson v. Robertson, 144 Ark. 556, and Williams v. Nichols, 47 Ark. 254. The Supreme Court of the State of Alabama has held that, when the 'successful bidder 'at a judicial sale fails to complete the purchase by complying with the terms thereof, the land may be resold at his risk; and that, if a less price be brought at the second sale, the first purchaser becomes liable to the person injured by his default for the difference between the amount paid at the first sale and the price brought at the second, together with the expenses of the second sale. The court said that, in every judicial sale, there is a condition implied by law, which does not depend on any expression of the condition in the order of sale, or in the terms announced at the time of sale, that, if the purchaser fails to comply with the terms of the purchase, if accepted by the court, the land may be resold at his risk, and he will pay the deficiency arising on the second sale, together with the expenses thereof. Howison v. Oakley, 118 Ala. 215. The land being situated in the State of Alabama, and having been sold at a judicial sale under the decree of a court of that State having jurisdiction in the premises, it follows that the right to recover for a deficiency resulting from a resale is an incident attending the sale, and that the measure of damages is the difference between the amount bid b3r Richardson at the first sale and the amount Tor which the land was sold for at the second sale. But it is contended by counsel for the defendant that this rule does not apply, because the first sale made to Richardson was not confirmed by the court. It appears from the record that the sale at which Richardson became the successful bidder was reported to the court, and that the sale was set aside because Richardson had failed to comply with the terms of the sale by paying the purchase money. Under the authority of the case of Howison v. Oakley, supra, we are of the opinion that, under this state of'the record, the bid of Richardson was accepted by the court, and that the sale was vacated solely on the ground of Ms failure to pay the purchase money. Hence it was not necessary to show a confirmation of the' sale in order to hold Richardson for 'the deficiency caused by a resale of the land. It also results from that decision and other decisions of the Supreme Court of Alabama that the right of resale at the purchaser’s risk is a condition of every judicial sale, implied by law, and does not depend on any expression of the condition in the order of sale, or in the terms announced at the time of sale. By reason of this implied condition, the purchaser agrees that, if he fails to comply with the terms of the purchase, the land may be resold at his risk, and he will pay the deficiency arising on the second sale. Hutton v. Williams, 35 Ala. 503; 76 Am. Dec. 297, and Howison v. Oakley, supra. Again, it is contended that it was necessary that Richardson should have notice that a resale would be made in order to hold him liable for the deficiency. This would be true if Richardson had made a bona fide attempt to comply with the terms of the sale at which he became the purchaser and failed to do so on account of some irregularity merely. In the instant case Richardson made no attempt to comply with the terms of sale, and absolutely refused to pay the purchase money. He thereby took upon himself notice of all consequences which might legally result from Ms failure, and is not entitled to notice of any proceeding thereafter to set aside his purchase and to order a resale of the land. Griel v. Randolph, 108 Ala. 601, and Howison v. Oakley, 131 Ala. 505. The views we have expressed will result in a reversal of the judgment, and the cause will be remanded for a new trial..