68 Miss. 278 | Miss. | 1890
delivered the opinion of the court.
This case presents several questions, but as one of them is decisive of the controversy, we confine our examination and decision to it. Hid the commissioner for the sale of the land have the right to resell it as he did, and is Campe liable in this action for the difference in what the land was bid off for at the first sale and the second ? The efforts of counsel and ourselves have failed to produce a single precedent for such an action. The nearest approach to it is Mount v. Brown, 33 Miss. 566, cited by counsel for the appellee. That is an action by an administrator, who sold a negro at public outcry, and upon the refusal of the highest bidder to comply with the terms of the sale, immediately resold to the highest bidder, and sued the first-mentioned bidder for the difference between his bid and the lower price for which the property went on the resale, and he was held to be entitled to recover. We would follow that case upon a similar state of facts, but the case before us is widely different, resulting from the difference between real and personal property and the modes of dealing with them. The settled doctrine in this state, as elsewhere, with respect to judicial sales of land, such as this was, is that the court is the vendor, through the commissioner as its representative, and that the sale is not complete until it has been confirmed by the court; and from this it results that the money, where the sale is for cash, is not de-mandable until confirmation of the sale by the court. Until then, no conveyance should be made to the purchaser, who must be ready to fulfil his contract when the court confirms the sale, and has
The course for the commissioner was to report to the court the sale he made, and to let the court deal with the buyer, for which it had ample power. 2 Dan. Ch. Pl. & Pr. *1281; 2 Jones on Mortgages, § 1642 et seq.; 69 Amer. Dec. 369. As this course was not pursued, but the commissioner readvertised and resold the land, and reported his action to the court, which, with information by the report that the land had been bid off by Campe, who refused to stand by his bid, ratified and approved the resale by the commissioner, the sale to Campe must be held to have been abandoned before its consummation, and no action is maintainable against him by reason of his bid. He was not in default.
The case of Hutton v. Williams, 35 Ala. 503, cited by counsel for the appellee, shows that the sale was duly reported to the court, which ratified the sale, and directed a resale of the land on the terms of the first sale, at the risk of the party who was the highest bidder at the first sale, and had refused to comply with the terms of sale. That case is an authority for what we regard as the correct practice in such cases.
In a note to Mount v. Brown, 33 Miss. 566, on p. 369 of 69 Amer. Dec., it is laid down that, besides the modes of enforcing the bidder’s liability by the court making the sale, there are two remedies at law, and that an action at law may be brought upon the purchaser’s notes or bonds given for the payment of the purchase-money, and that the “ officer of the court who makes the sale may sue at law to recover the amount bid, or the deficiency arising upon a resale, for the remedy in equity to compel by summary process the purchaser to complete his purchase or pay the deficiency on a resale, is cumulative, not exclusive,” and Townshend v. Simon, 38 N. J. L. 239, Shinn v. Roberts, 20 Id. 435, and two Louisiana cases, are cited in support of the last-mentioned proposition.
This is merely to assert that one of the parties to a written contract may sue the other for its breach, to which we assent; but the cases cited do not maintain the right of action in the case we are considering. The cases cited as being in the Louisiana reports rest upon statutory regulations, and may be laid out of view. In 12 Am. & Eng. Ency. of Law, p. 234, is the same statement found as in 69 Am. Decisions, and quoted above, and the case of Townshend v. Simon, supra, cited, upon which we have already remarked.
It may seem incongruous to sustain an action by a sheriff, or an administrator, in the state of case disclosed by Mount v. Brown, 33 Miss. 566, or upon the facts in the New Jersey cases, and to refuse to do it in the state of case here presented;, but it is a corollary from the established doctrine in this state, and in other states and in England, that a sale like this is not complete until confirmation, and until then there is no right in the person selling to complete the sale by demanding the money, and making a conveyance, and therefore there was no default by Campe, and the subsequent action of the commissioner and the court precluded his being put in default, and thus he escaped all liability.
There is no advantage in having a right to sue at law for a difference in bids, as in Mount v. Brown, supra, because the power of the court making the sale is ample to enforce any liability of the bidder, if he is solvent, and, if he is not, a recovery against him at law would be fruitless, except to impose cost on the party suing.
Reversed and remanded.