27 So. 2d 490 | Ala. | 1946
The appeal seeks to reverse a decree of the circuit court in equity, confirming a *296 partition sale to appellee of lands of the estate of Edward Tavel, deceased.
The decree ordering the sale designated the two administrators of the estate as commissioners to sell the land either publicly or privately, subject to confirmation by the court. Pursuant to this authority a private sale of the property was negotiated and finally consummated with appellee, who made a deposit of $500 and was ready and able to pay the balance when the sale should be confirmed by the court. The appellee, at this judicial sale, thus became the purchaser — "that is, one whose offer to purchase is accepted by the officer authorized to make the sale, subject to confirmation by the court in due course." Harduval v. Merchants' Mechanics' Trust Savings Bank,
Though the sale is regarded as in negotiation and is not complete until confirmed by the court, the bidder to whom the property is sold is recognized as the purchaser. He becomes a quasi party to the cause, acquires certain equities in the property, and is subject to the decretal orders of the court with reference to the sale. Taylor v. Wilson,
The commissioners, however, failed to report this sale to the court, and about thirty days thereafter, Mrs. Campbell, one of them (the other commissioner having died in the meantime), negotiated and received a second offer from her son, advancing the price about ten per cent. She then reported both bids to the court and requested confirmation of the second one.
The court confirmed the first sale made to appellee and this appeal is by administratrix Campbell and the other heirs at law of the decedent, who challenge the decree for this action and for failing to approve the second bid. No contention is made that the first sale was not fairly and regularly conducted nor that the property did not bring its fair value, but it is insisted that since the sale was not binding on the estate until confirmed by the court (Henry v. White,
As to judicial sales generally, the courts of this country, including our own, have never countenanced the practice of ordering a re-sale upon mere advance in the amount bid (Littell v. Zuntz,
This is the general, underlying principle and based on public policy, recognizing that to adopt a rule of setting aside sales because of a subsequent, advance offer would chill the bidding and render judicial sales generally unstable, thereby resulting in discouraging bidders and diminishing the amounts realized. Bethea v. Bethea,
This general principle cannot be overlooked in sales for distribution in the progress of the administration of an estate. While we have said that in such a proceeding "the court should see that a reasonably fair price is obtained, before confirming the sale" (Roy v. O'Neill,
The decision of the trial court affirming the sale to appellee was consonant with these settled principles. The sale was fairly and honestly made pursuant to the decree. The commissioners through their duly authorized attorney induced the offer from appellee and then accepted it. The commissioners had previously certified, and there was other similar evidence before the court, that the amount bid was the *297 fair value of the property. This fact seems not to have been disputed.
The appellee was a stranger to the proceedings and this is also to be considered in favor of the decree, for, as our decisions have indicated, "that circumstance makes a difference." Hendrix v. Francis,
The matter of confirmation rests peculiarly upon the wise discretion of the court. His decision is of weighty consideration on review (DeLoach v. White, supra) and, on the facts disclosed, we think the decree well sustained and should be affirmed.
The statute of frauds is not available to reverse the decree. Without considering the question of waiver (Johnson v. Maness,
The decree is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.
