61 Miss. 78 | Miss. | 1883
Lead Opinion
delivered the opinion of the court.
The objections interposed to the confirmation of the sale are four: first, because the lands were sold at a grossly inadequate price; second, because an agreement was made between the purchaser and several of the parties in interest in the land, that in the event the property should be bought by the individual who subsequently did buy, these persons should have the option to pay a proportionate part of the amount bid, and upon so doing should retain the same interest in the lands as that which they before had held; third, because by reason of a belief existing in the minds of the public that the exceptors, or some one or more of them, would appear at the sale as bidders and buy in the property at its full value, other persons failed to appear as bidders at the sale; fourth, because the exceptor, Martin, was prevented by important business from returning from New York to attend the sale and employed an agent to attend and bid for the property the sum of twelve thousand dollars, which the agent neglected to do. Another ground of objection, not ¡specifically assigned in the court below, but probably considered ex mero motu by the Chancellor, is that one of the co-owners of the property was a minor, whose father, through whom he inherited the land, had died since the rendition of the decree for sala
We think it may be fairly said that on the whole evidence it is reasonably clear that the value of the property is from two to four
We are unable to see anything in the agreement made between Allen, the purchaser, and Wells and Williamson and Baldwin, the attorneys of some of the co-owners, calculated to cause a sale of the property for a less amount than' it would otherwise have brought, or tending in any manner to the injury of the exceptors. It is affirmatively shown that the clients of these attorneys were poor people unable to purchase the property, that none of them were present at the sale, and that their attorneys were not authorized to make any offers, for any portion of the property to be sold. It is further shown that after the agreement had been made, these attorneys induced, or tried to induce, other persons to bid upon the lands, and did nothing to prevent a fair sale at full prices. It further appears that at the suggestion of Mr. Baldwin, the sale was postponed until after the hour at which one leaving Vicksburg, where the exceptors live, would reach the ground; that a telegram was sent to Mr. Klein, at Vicksburg, inquiring whether they ■desired and expected to be represented, and one to Messrs. Calhoon & Green, their attorneys at Jackson, to the same purport. To the one sent to Klein a reply was received that the Vicksburg parties were out of town, and would have no representative on the ground, and Messrs. Calhoon & Green replied that they had no authority to act in the matter. It was only after all this had been done that the property was exposed to sale. There were many persons on the ground, a number of whom were able to have bought all the property, and some of them other than the purchaser made bids for several of the parcels. Mr. Baldwin states that he thinks
The existence of a belief on the part of some of the public that the owners, or some of them, would appear at the sale and buy in the property, unless it should bring a fair price, is entirely too indefinite and unsubstantial. If this should be deemed a sufficient ground for refusing confirmation of a sale for partition, it is difficult to conceive when such sales would be confirmed, save only in those cases in which the owners were unable to protect their property from sacrifice by reason of their poverty. It is a natural presumption that the owners of property sold for partition will protect it as far as is practicable from sacrifice by themselves appearing as bidders at the sale, but if this is ground for objection by the other co-owners to the sale when made, it would follow that no sale could ever be confirmed unless either the property had brought its full or approximate value, or the owners had invited a sacrifice by publicly giving notice that they would not appear as bidders. The fourth exception is wholly unsupported by evidence. Martin, it is true, made oath to the exceptions filed by him,, but this he was not required by law to do, and the addition of the oath gives them no force whatever as testimony.
Laying out of consideration for the present the fact that one of the owners was an infant of tender years, we have a sale stripped of all objections save that the property was sold at an inadequate price. Is this sufficient to authorize a re-sale of the property.? Though the courts of many of the States have iterated and reiterated the proposition that mere inadequacy of price is not sufficient to justify a refusal of confirmation, an examination of a great number of the eases discloses the fact that where this inadequacy exists to any marked extent, the courts have been swift to seize upon exceedingly attenuated reasons, excuses, or pretexts to refuse confirmation. In England sales made by a commissioner are treated as if made by the court itself. A bidder acquires no right but to have his offer considered by the court, and to accept or refuse the offer
It is too late for us to consider whether the English rule as to opening the bids on the offer of an advance in price is not the fairest and most equitable; with one voice the American courts have repudiated it, but with a strange inconsistency have evaded rather than enforced
We have found only one case in which a sale rejected by the Chancellor has been confirmed by the appellate court, that of Comstock v. Purple, 49 Ill. 158 ; but because it has not been done is no reason why it shall not be done in a proper case. The inadequacy of price was not sufficiently great to raise a presumption of fraud, and we find nothing in the record warranting a rejection of the sale at the instance of the adult co-owners. It appears, however, that one of the tenants in common is an infant of tender years, and because he is, the court of chancery, which is the universal guardian of all infants, should jealously protect his interest. Because of his want of capacity to protect himself a different and broader protection is afforded to him by the court than is given to those capable of guarding their own interests. As between the adult owners and the purchaser, the rights of the purchaser are superior, as between the purchaser and the infant those of the infant must prevail. Because to confirm the sale would be prejudicial to the infant, the Chancellor rightly refused to confirm it as to his interest in the land. We do not, however, think it proper that the purchaser should be deprived of the whole benefit of his purchase. There is no ground for rejecting the sale as to the adults, and though for the protection of the infant the sale cannot stand as to his interest in the property, it is not necessary that it shall be wholly rejected. The exceptors cannot through the protection afforded to the. infant acquire the right to have their interest
Bond given, and decree accordingly.
Dissenting Opinion
delivered the following dissenting opinion.
Theproperty was sold for partition, the object being, of course, that there might be a fair and equitable division of the proceeds among the several owners. It has resulted in the husband of one of the co-tenants becoming thesoleowner bypaying to the others less than one-third of its value. According to the opinion of the majority of the court, there is no remedy for this injustice, and this court is bound to sanction it, though the commissioner who made the sale refused to recommend its confirmation, and every witness who was examined testified that the price was wholly inadequate, only differing as to the extent of the inadequacy, some placing it as great as five times below the actual market value of the estate. The Chancellor having heard the witnesses, ordered a re-sale, at which sale the appellee, Martin, has bound himself to bid at least twice as much as was bid at the former sale. Counsel for the appellees stated in his argument that no case could be found in England or America,
Every member of the court concurs with the Chancellor in thinking that the property in this case has been sacrificed at less than a third of its value, and therefore we refuse to confirm the sale as made and reported; but the majority of the court resort to the singular and novel course of confirming it as to all the adult ex-ceptants, and setting it aside as to the minor; or, in other words, they practically refuse to accept the bid as made by the bidder, but give him a chance in this court to raise his bid. I assert that no similar decree in an appellate court can anywhere be found. There are numerous instances where, as in the case of Lefevre v. Laraway, 22 Barb. 167, the courts have declared that the mere fact that there was a minor in the case warranted them in setting aside a sale for inadequacy of price; but nowhere have they held themselves bound to confirm it as to the other parties in interest who were adult. A bid for property exposed to public sale is a single'and indivisible thing, to be accepted or rejected as made, and inasmuch as the bidder can only be compelled to comply with his offer as made, so also he cannot demand that it be split up for his benefit. Even though the court were compelled under the circumstances of this case to allow him the benefit of his inadequate bid, if there was no minor (which I deny), the fact that there is a minor, forbidding, as it does, the perpetration of the injustice to that minor, relieves us from the necessity of ratifying it as to the adults. The minority of one of the defendants forbids the sanctioning of the injustice as to him, and no principle of law therefore compels us to confirm it as to the adults. The bidder must stand or fall by his offer as made at