Allred v. McGahagan

39 Fla. 118 | Fla. | 1897

■Carter, J.:

The first and fifth assignments of error are as follows: “1st. The court erred in making the order of ■July 14, 1891, authorizing the issuance of a rule against appellant to show cause why appellant’s bid should not be paid, the report of the master of the purchase not having been at that time, nor since, confirmed by the court below.” “5th. The court erred in holding respondent liable to pay the amount of his bid before confirmation of the sale by the court.”

There is no doubt that a court of equity has power to make an order and enforce it, requiring a purchaser «of property at a sale by its master, to pay the amount ■of his bid into court, but it is uniformly held that before making such order the court should confirm the •sale. The rule stated in 2 Daniell’s Chancery Pleading and Practice, page 1281 is as follows: “The rule, that the master’s report of a purchase must be absolutely confirmed before the contract can be considered as binding, applies equally to cases in which it is •sought to compel a purchaser to complete his purchase, as where it is sought to enforce the contract against the vendor. As a preliminary step, therefore, •towards enforcing the completion of the contract, it is necessary to have the report confirmed.” To the same «effect are 2 Freeman on Executions, sec. 304a; Note to Mount vs. Brown, 69 Am. Dec. 365; Wiltsie on Mortgage Foreclosures, sec. 553; Campe vs. Saucier, 68 Miss. 278, 8 South. Rep. 846; Schaefer vs. O’Brien, 49 Md. 253; Anderson vs. Foulke, 2 H. & G. (Md.) 346. This court in the cases of Petty vs. Mays, 19 Fla. 652, and Brown vs. Marzyck, 19 Fla. 840, held that where «decrees of foreclosure directed the master to make sale of mortgaged property and to execute and deliver to the purchasers deeds of conveyance, the deeds so executed and delivered to and accepted by the purchasers-were evidence of the purchasers’ title, without a formal order confirming the sales, but these cases do not hold that the purchasers at the foreclosure sales could have-been required by rule to pay the purchase money and accept such deeds from the master, without a prior-confirmation of the sales. In this case it is not claimed that the masters’ sale has ever been confirmed, and, in the absence of such confirmation, it was error for the-court to issue or make absolute the rule against the-purchaser.

The several orders appealed from are reversed, and the cause remanded for such further proceedings as may be agreeable to chancery practice and consistent-with this opinion.