88 Va. 735 | Va. | 1892
delivered the opinion of the court.
The bill was filed by some of the heirs and distributees and widow of Josephus Carr, deceased, against the other heirs, having for its object the due administration and division and distribution of his estate, real and personal. A decree was
"W. E. Garrett alone executed bond as such special commissioner, and he alone acted in executing the decree of sale.
On the 10th day of March, 1890, the real estate, consisting of two tracts of land, each containing three hundred acres, one called the “ Mountain Earm,” the other called the “ Home Place,” was offered for sale by the said commissioner, W. E. Garrett. It was offered under the following plan: The mountain farm was offered first to test the amount it would bring; then the home place was put up in the same way, and neither place to be sold until the real estate was offered as a whole; and if the real estate, as a whole, should command a higher bid than it had commanded when offered separately, then it would be sold as a whole, otherwise not.
Mr. Garrett, the acting special commissioner, and the other gentlemen named as such, but not acting, were lawyers, and were to leave that evening for Richmond, under a telegram calling them to argue a case in this court, so that the acting commissioner, and the others named as such, desired to complete the matter of sale early enough to get to the depot that evening.
Mr. Garrett, having the impression from the parties iii interest (there were no creditors), that the land would not be sold unless it brought $25 or $-30 per acre, put up the mountain farm for the first offering, and it was cried at.$10 per acre, when, as he states, being advised by the distributees that .the lands were worth $30 per acre, and by L. M. Carr, one of them, that if forty acres of the mountain in wood should go with it that he would give $20 per acre for it; and this haying been so arranged in the division, and that being the first offering, and
Mr. Yieliols denies that Mr. Garrett gave him the information stated above, but lie is, doubtless, mistaken, as Mr. Alexander sustains Mr. Garrett, and says that while the tract ivas being cried as a whole Mr. Garrett told Mr. Yieliols, and Mr.
The above facts were reported to the circuit court of Loudoun at term tíme, and Mr. Mead came in and said that he had never intended to buy the land, and had made this bid at the request of Mr. Garrett, his friend and neighbor, and supposed he was doing right in the matter, as Mr. Garrett was the party making the sale; that Mr. Garrett had said to him that he was running this sale, and no harm should come to him; that it should not fall on his hands; that he did not make the bid, but that Mr. Garrett, after speaking to him, told the auctioneer that Mr. Mead here would give $20 per acre, and he had allowed the auctioneer to so cry it. It was then taken down, not knocked down to him; then offered jointly with the home farm, and again taken down, and again offered with new conditions — that the wheat crop would be reserved; that he thought this was a new offering, and he did not again bid, nor did anybody else bid for him nor in his name., and he left, supposing that he had no concern with it, and was not there present when the mountain farm was knocked down to him, and did not know it, and had had no further connection with it; that he did not want, the land at any price, and acquiesced in the action of Mr. Garrett, the court’s commissioner and his own life-long friend. — ■ believing that it was all right.
Notice was given to Mr. John Mead and Mr. Lewis M. Carr
We think the decree appealed from is, under the circumstances of this case, right. There appears to have been no fraud or undue concealment in the matter from the counsel of the parties then and there present, they having been fully informed of the relation which Afead held to the transaction. There was no bid reported to the court by the only commissioner who was legally qualified to make any report of sale to the court, and when the court, the .vendor, came to consider the matter, there was no bid for the land and no bidder to whom the sale could be made.
0 The court, in acting upon the matter, wras called upon to act in the exercise of a sound legal discretion in view of all the circumstances. It is to be exercised in the interest of fairness, prudence, and with a just regard to the rights of all concerned. Opinion of Staples, J., in Brock v. Rice, 27 Gratt. 816; citing Taylor v. Cooper, 10 Leigh, 317; Daniel v. Leitch, 13 Gratt. 195-211-214; Blossom v. Railroad Company, 3 Wall. (U. S. R.) 205, 206, 207; Rorer on Judicial Sales, pp. 30, 55, 56.
Judge Staples, in that case, says, also, on page 815 :
“ Whether the court will confirm the sale must in great measure depend upon the circumstances of each particular case. It is difficult to lay down any rule applicable to all cases, nor is it possible to specify all the grounds which will justify*740 any court in withholding its approval. If there is reason to believe that fraud or mistake has been committed, to the detriment of the owner or the purchaser, or that the officer conducting the sale has been guilty of any wrong or breach of duty, to the injury of the parties interested, the court wjll withhold a confirmation. Either party may object to the report, and the purchaser himself, who becomes a party to the suit, may appear before the court, and have any mistake corrected. Roudabush v. Miller, 32 Gratt. 454; Berlin v. Melhorn, 75 Va. 639; Hansucker v. Walker, 76 Va. 755; Langhyer v. Patterson, 77 Va. 470; Terry v. Coles, 80 Va. 695.
In the last-named case it is said: “ Confirmation is the judicial sanction of the court. Until then the bargain is incomplete. Until confirmed by the court the sale confers no rights; until then it is a sale only in a popular and not in a judicial or legal sense. The chancellor has a broad discretion in the approval or disapproval of such sales.. The accepted bidder accprires, by the acceptance of his bid, no independent right, as is the case of a purchaser at a sale under execution, to have his purchase completed, but is merely a preferred proposer until confirmation by the court of the sale, as agreed to by its ministerial agent. In the exercise of this discretion a proper regard is had to the interest of the parties and the stability of judicial sales. By sanctioning a sale the courts make it their own. There is a difference between such sales and ordinary auction sales and sales by private agreement. In cases of sales before a master, the purchaser is not considered as entitled to the benefit of his contract until the master’s report of the purchaser’s bidding is absolutely confirmed. Daris v. Stewart, 4 Texas R. 226; Henderson v. Herrod, 10 Miss. R. 454; Taylor v. Gilpin, 3 Met. 456; Hays’ Appeal, 51 Pa. State R.; O. L. Ins. & Trust Co. v. Gibbons, 10 O. St. Rep. 563; Todd v. Gallego Mills Manufacturing Co., 84 Va. 586, and authorities cited. .
Tjpon consideration of the foregoing well-settled .principles,
Decree affirmed.