60 F. 9 | U.S. Circuit Court for the District of Northern Alabama | 1894
In the case of The Central Trust Company v. The Sheffield & Birmingham Coal, Iron & Railway Company,
Upon this bill, on a rule nisi, the injunction on the kearing was denied. Thereafter, on the 22d day of January, 1894, the special master proceeded to make the sale of all the property described in the decree and mentioned in his advertisement, except that of the said line of railroad formerly known as the Sheffield & Birmingham Bailroad, and at said sale said property was bid for and purchased by John 11. Hoble, trustee, he being the best and last bidder therefor, for the sum of $35,000. The said purchaser complied with the terms of sale, and thereupon the special master put the said purchaser in possession of the property sold. On the 1st day of February, 1894, the Alabama Iron & Bailway Company .filed an amended and supplemental bill to the bill of complaint filed in the cause on the 13th of January, 1894, therein reciting that the special master, Milton Humes, in accordance with his advertisement referred to in the original bill, exposed for sale, and sold, all of the property described in the decree, except the property of the Sheffield & Birmingham Bailroad Company, now known as the Birmingham & Tennessee Biver Bailroad Company; that, at said sale, John B. Knox, Esq., counsel for the Anniston Loan & Trust Company, bid in the whole of said property, which was sold in lump, and not in parcels, — including the property belonging to the
“United States Circuit Court for tlie Northern District of Alabama, Northern Division.
“In Equity.
“Alabama Iron and Railway Company et al. v. Anniston Loan and Trust Company et al.
“Upon reading and considering the foregoing bill, being an amended and supplemental bill to the bill of complaint filed in this cause on the 13th of January, 1894, it is ordered that the same be filed, and that the defendants, the Anniston Loan & Trust Company and J. H. Noble, trustee, do show cause before nie, at my chambers, in New Orleans, La., on Mon*13 ■day, the 12th day of February, 1801, or as soon ¡hereafter as counsel can be heard, why the injunction and relief prayed for in said cause should not be granted.
“It is further ordered that in ihe meantime, and until the hearing aboye provided for, the said Anniston Loan & Trust Company and John H. Noble, trustee, their attorneys, agents, and abettors, be temporarily restrained and enjoined from making any sale, transfer, or disposition of any part of the property of the Alabama Iron & Hallway Company or of the Townley Coal & Coke Company, as the same were set forth and described in an advertisement lately appearing in the newspaper called-the Argus, published at Huntsville, Ala., in a notice wherein Milton Humos, Iflsq., as special master, advertised said property to be sold at Huntsville on the 22d day of January, 1894.
■‘It is also ordered that until further orders of the court the defendants, the Anniston Loan & Trust Company and J. H. Noble, trustee, their attorneys. agents, employes, and abettors, and all parties claiming under or through them, or either of them, are also restrained and enjoined from possessing, controlling, or exercising any rights of ownership, possession, or dominion over, the aforesaid properties, or any part thereof, as against the said Alabama Iron & Uailway Company, the Townley Coal & Coke Company, or their attorneys, officers, or agents.
“Tt Is further ordered that this order be served by having certified copies of the same served upon ihe Anniston Loan & Trust Company and J. II. Noble, trustee, by the marshal, or his authorized deputy, for the northern district of Alabama. This order not 1o be construed as preventing a report of the sale and proceedings to confirm the same regularly and according to equity practice.”
On February 6tb, John II. Noble, trustee, filed his petition in court, showing that he was the purchaser of the property sold by the special master under the decree rendered in the case called The Central Trust Company of New York v. The Sheffield and Birmingham Coal, Iron & Railway Company, in favor of the Anniston Loan & Trust Company; that he has in all respects complied with the tonus of his purchase, by paying the purchase money, and had received a deed of conveyance to said property, as directed by the decree of the court, and, exhibiting a copy of the special master's report, prayed for a rule nisi to issue to respondents, the Sheffield & Birmingham Coal, Iron & Railway Company, the Alabama Iron & Railway Company, the Townley Coal & Coke Company, Napoleon Hill, trustee, James C. Neely, trustee, and Jacob G. Chamberlain, receiver, to show cause why the said sale should not he confirmed. Said rule nisi was granted, returnable on the 12 th day of February, 1894, before Don A. Pardee, circuit judge, at his chambers, in New Orleans. On the 6th day of February, 1894, the Alabama Iron & Railway Company, the Townley Coal & Coke Company, Napoleon Hill, trustee, and James C. Neely, trustee, filed their second amended and supplemental bill of complaint, wherein the history of the sale is again recited, and the same alleged to be illegal for the following reasons, to wit: (a) Because the advertisement under which said special master made said sale was illegal, null, and void, (b) Because said sale was of the whole of said properties in a lump, without putting them up in separate lots or parcels, (c) Because the price of $35,000 is so small and inadequate that no court can legally confirm said sale, (d) Because said special master, as orators are informed and believe, had not filed any report of said
On the 12th day of February, both the two rules nisi heretofore mentioned came on for hearing, all parties being represented by counsel. Thereupon, the Anniston Loan & Trust Company and John H. Noble, trustee; .filed demurrers to the second amended and supplemental bill, and also an answer to the second amended and supplemental bill. The grounds of these demurrers and answers need' not be recited. The Alabama Iron & Railway Company, the TownLey Coal & Coke Company, Napoleon Hill, trustee, and James C. Neely, trustee, filed grounds of exception to the report of the special master, in which the objections, uncertainties, and illegalities, as set'forth in the several amended and supplemental bills filed by the Alabama Iron & Railway Company et al. are reiterated, although more fully detailed and specified, and, further reciting the issues presented by the said amended and supplemental bills, contended that the confirmation of the sale and the disposition of the exceptions to the report of the special master should not be disposed of prior to a hearing and decree under said amended and supplemental bills, and further setting out that the property sold is subject to a lien equal, if not superior, in rank, to the lien of the Anniston Loan & Trust Company, amounting to $125,000 and interest, which lien and the holders thereof should be represented; and exceptors further objected to the hearing of the rule nisi for the confirmation of the sale made by the special master in vacation, and not in and at the regular term of the circuit court for the northern division and northern district of Alabama.
The vital question presented for consideration is whether the sale made by the special master under the decree of court of November 22, 1892, should be confirmed. . If so, the proper disposition of all other questions presented is easily determined.
A preliminary question is whether we have, sitting in chambers, and not at a stated term of the circuit court for the northern division of the northern district of Alabama, jurisdiction to pass upon the question of confirmation. The first equity rule is as follows:
“Oourt, When Open. The circuit courts, as courts of equity, shall he deemed always open for the purpose of filing hills, answers, and other pleadings, for issuing and returning mesas and final process and commissions, and for making and directing all interlocutory motions, .orders, rules, and other proceedings, preparatory to the hearing of all causes upon their-merits.”
In the case of Mining Co. v. Mason, 145 U. S. 349-364, 12 Sup. Ct. 887, it is held that equity rule 83, which provides for exceptions to masters’ reports, hearing the same, etc., has no reference to a report by a master of a mere ministerial matter like a sale, but only to Ms report upon matters heard and determined by him; and in the same case (page 364, 145 U. S., and page 891, 12 Sup. Ct.) the rule as stated in 8 Am. & Eng. Enc. Law, p. 254, to wit:
“The master or commissioner making the sale should report his action to the court, to the end that the sale may be confirmed, and motion 1» confirm the sale, wi1h notice to the parties adversely interested to the confirmation, should he made. Confirmation nisi will be ordered to become absolute within a designated time, unless cause is shown against it. If cause is not shown, it stands confirmed,”
—⅛ approved as the correct rule of practice.
In Camden v. Mayhew, 129 U. S. 73, 9 Snp. Ct. 246, where the question was whether a confirmation of a sale under a decree in chancery is necessary in order to compel the purchaser to comply with his bid, it is said:
“It is undoubtedly true that Camdou’s bid of $173,050 was, in legal effect, only an offer to lake the property at that price, and that the acceptance or rejection of that offer was within the sound equitable discretion of the court, to be exercised with due regard to the special circumstances of the case, and to the stability of judicial sales.”
Section 574, Rev. St., provides—
“That district courts, as courts of admiralty and as courts of equity so far as equity jurisdiction has heen conferred upon them, shall be deemed always open t'or the purpose of filing any pleading, or issuing or returning mesne and final process and of making and directing all interlocutory motions, orders, rules and other proceedings, preparatory to the hearing upon the-ir merits of all causes pending therein,”
—which is substantially the same as is provided for the circuit courts under the first equity rule.
In Gould & Tucker’s Notes of the Bevised Statutes, commenting on 1 his sta tute, it is said:
“With respect to that provision, it is to be observed that while common-law judges properly exercise their authority only when holding a court, and have no power to sit in vacation, yet courts of equity are always open; tile chancellor's authority being personal, as representing the crown or supreme head of the state, and capable of exercise equally in term time and in vacation;” citing Langd. Eq. Pl. § 38; Crowley’s Case, 2 Swanst. 1; Brown v. Lull, 2 Sunn. 443, Fed. Cas. No. 2,018.
As a matter of practice, within this circuit, — and in the other circuits, so far as we are advised, — it has been universal to treat all questions of confirmation of sale as relating to final process, and under the head of “Motions and Orders not Grantable of Course,” and as within the jurisdiction of the chancellor to determine at
“Motions and Orders not Grantable of Course. All motions for rules or orders and other proceedings, which are not grantable of course, or without notice, shall, unless a different time be assigned by a judge of the court, be made on-a rule-day, and entered in the order-book, and shall be heard at the rule-day next after that on which the motion is made. And if tlie adverse party, or his solicitor, shall not then appear, or shall not show good cause against the same, the motion may be heard by any judge of the court ex parte, and granted, as if not objected to, or refused, in his discretion.”
The objection to considering and determining the matter of confirmation at this time, particularly when each side has brought the other before the chancellor on the subject on a rule nisi, must be disregarded. The report of the master shows that, in advertising and selling the property, he has strictly followed and complied with the terms of the decreet-under which he derived his authority, and his report thereof, and the sale made by him thereunder, should be confirmed, unless the exceptions filed thereto are well taken.
The first exception is that the special master had no right to make the sale, because he had not made any legal or proper advertisement of said properties, as provided by the act of congress of March, 1893, in respect of legal sales made under any process in the circuit courts of the United States, and presents the only serious question in relation to the matter of confirmation. The act of congress, having been passed after the decree in question was rendered, must be given a retroactive or retrospective application, if it applies in this case. The act not only contains no expression of an intention that it shall be retrospective, but, on the contrary, seems to show on its face that it was expected to operate only prospectively. In each section of the act the expression occurs, in regard to details of either the sale or advertisement, “as the court rendering said order or decree of sale maj' direct.” It is a general rule that statutes are not given a retroactive effect unless the contrary intention is clearly expressed. Murray v. Gibson, 15 How. 421; U. S. v. Heth, 3 Cranch, 339; McEwen v. Bulkley, 24 How. 242; Twenty Per Cent. Cases, 20 Wall. 179; Auffm’ordt v. Rasin, 102 U. S. 620; Chew Heong v. U. S., 112 U. S. 536, 5 Sup. Ct. 255. In U. S. v. Heth, supra, the court said:
“Words in the statute ought not to have a retrospective action unless they are so clear, strong, and imperative that-no other meaning can be annexed to them, — unless the intention of the legislature cannot otherwise be satisfied,— and such is the settled doctrine of this court.”
If the statute in question is given a retrospective effect, it would impose a necessity of again applying to the court in the case of every unexecuted decree rendered prior to the passage of the act, a mischief which we do not think was intended. The authorities cited by the contestants bear upon the question of vested rights and remedial statutes, but, in'the view we take of the statute, such authorities need not be considered. We construe the statute as
It is further objected to the confirmation that the sale was made of all the property subject to intervener’s lien as an entirety and not in parcels, in relation to which it is averred that either parcel was of sufficient value to pay intervener’s lien. The answer to this objection is twofold: First, the decree so directed, and neither party complained until afterwards: second, there is no offer now by any one to pay a higher price for any parcel, or for the whole, than the sale realized, in case the bidding shall be reopened. It is true there are averments as io the cost of parcels and of the whole, which tend to show that the property realized an inferior price*, compared with its cost, but these averments fall short of showing that on another sale a better price would be realized. The present hard times, and the depreciation attending all property of the kind in question, may possibly account for the situation; and the case seems to he somewhat like Mining Co. v. Mason, supra. The decree is a sufficient answer, however, to the objection that the sale was not made in parcels. Hammock v. Trust Co., 105 U. S. 77-86; Central Trust Co. v. Wabash, etc., Ry. Co., 30 Fed. 332.
Another objection to the confirmation is that other lions bear upon the same property, of equal rank, and that the property ought lo he resold, and for the benefit of all lienholders. The record of the cases discloses that there are other and large liens on (he property, of equal and perhaps prior rank to the intervener’s lien. This in part accounts for the price brought at the sale, as the purchaser as well as other bidders knew that the property offered was incumbered. Rut-such fact is no reason why the sale, as made, should not he confirmed; the oilier lienholders not complaining, and otherwise being able to take care of themselves.
On the whole, we see no reason why the sale should not be confirmed, and an order to (hat effect will be entered. As,the sale should he confirmed, the complainants in the dependent and supplemental hill and in amended supplemental hill ought not to have the injunction pendente asked for.
McGORMIGK, Circuit Judge, concurs.