25 W. Va. 530 | W. Va. | 1885
In order to foreclose two mortgages on a tract of 2,000 acres of land held under a lease for a term of years, having only four and one-half years to run, Albert Childs, who was the mortgagee, filed his bill in the circuit court of Taylor county against the lessor, Samuel Colgate', Charles S. Hurd, who was the lessee and mortgagor, and The Austen Coke Company, which was the assignee of the equity of redemption in the leased premises, to satisfy the mortgage-debts amounting to over $8,000.00. In this suit a decree was entered by consent of all the parties whereby among other things, it was adjudged, ordered and decreed that the mortgaged premit. ¡ should be sold, and special commissioners were thereby appointed, and directed to sell the same on the terms therein prescribed. On January 3, 1882, the special commissioners, in compliance with the decree and in all respects according to law, sold the premises to the appellant, Edward Austen, who was the highest bidder therefor, at the
The Austen Coke Company then offered the court for said property an upset bid of $5,500.00, in case the sale should be set aside and the biddings re-opened, and secured the same, by bond with approved security, which the court accepted and thereupon set aside the sale made to appellant, and directed one of the special commissioners theretofore appointed to re-offer the mortgaged premises for sale upon the terms prescribed in its former decree, and also to return to the purchaser his deposit of $1,275.00, and to cancel and surrender to him his bonds for the deferred payments.
From this decree the purchaser, Edward Austen, obtained in vacation, an appeal and supersedeas from a Judge of this Court.
The only error assigned by the appellant is, that the circuit court improperly set the sale aside and directed the property to be re-sold, because the advance bid of $5,500.00 was wholly insufficient to warrant the court in doing so; and the counsel for both parties to this appeal have confined their arguments to the discussion of the single question, whether under the circumstances disclosed in this record the circuit court, in the exercise of its judicial discretion, was authorized to set aside the sale made to the appellant on the sole ground, that an upset or advance-bid of $400.00 had been offered over that stipulated to be paid by the appellant. There is no doubt of the correctness of the legal proposition, that the purchaser of property at a judicial sale who has complied with the terms thereof, becomes a party to the suit from the time of
It is equally well settled that a sale made by a commissioner under a decree in a court of equity is not in this State an absolute sale, and does not become such, until it is confirmed by the court, and that until this lias been done, the purchaser has no fixed interest in the subject of the sale. Hartly & Co. v. Roff, 12 W. Va. 401; Cooke’s Adm'x v. Gilpin 1 Rob. 39; Crews v. Pendleton, 1 Leigh 297; Heywood v. Carrington’s Heirs, 4 Leigh 373; Taylor v. Cooper, 10 Leigh 317; and Hudgins v. Marchants & Co., 28 Grat. 177.
There is no doubt that a motion to confirm or set aside a sale made under its decree, is one addressed to the legal discretion of the court to be governed by circumstances of the particular case; and if improperly exercised it will, in a proper case be corrected by appeal at the instance of the injured party. After a careful examination of numerous authorities, we are unable to deduce from them any rule, whereby we can determine, in what particular class of cases a purchaser at a judicial sale which has not been confirmed, can be' said to be injured by a decree setting aside his purchase, and directing the property to be re-oftered for sale, until after such re-sale lias been made and confirmed, for until then non constat, but that at the re-sale he may repurchase the property on terms more favorable than he did at the first sale. But from the view we take of this case it is unnecessary to consider or discuss these questions. A question of • more importance to the appellant meets us at the threshold, and that is, has this Court jurisdiction to allow, or to enter
"Unless the decree complained of falls within some of the classes specified in the seventh clause of the section above quoted, the appeal can not be maintained, as it is certainly not embraced in any of the six preceding clauses of that section. It is clear that the decree in question was not one dissolving or refusing to dissolve an injunction, nor one requiring money to be paid, nor real estate to be sold, nor was it a decree adjudicating the principles of the cause, for the record clearly shows that all questions touching the amounts and priorities of the liens thereon, and of the disbursements of the proceeds of said sale were expressly reserved for the further order of the court. Was the decree complained of in any proper sense, one “ requiring the possession or title 'of the property to be changed ?” In other words, did the decree require any
This conclusion may seem to militate against some reported cases where appeals have been entertained from decrees setting aside judicial sales. In most of these cases, however, the appeals were taken by parties, who were by the decrees complained of, deprived of the possession or title of the property sold, or by creditors who were liable to be injured by an increase of their debts by interest accruing thereon, or by inevitable depreciation of the value of the property, before a re-sale thereof could be made as in Hughes & Co. v. Hamilton & Co; Marling v. Robrecht; Hudgins v. Marchant & Co., supra, and in Duncan v. Dodd, 2 Paige, 99; Requa v. Rea, Id. 339; American Insurance Company v. Oakly, 9 Paige 259; Hudgins v. Lanier, Bro. & Co., 23 Grat. 494, and Curtis v. Thompson, 29 Grat. 474.
We have been able to find but few cases where an appeal from a decree setting aside a sale, and re-opening the biddings has been entertained before the re-sale has been made and confirmed.
The appeal of Hays, in 51 Penn. State P. 58, which sought to do this, was promptly dismissed. Strong, Justice, delivering the opinion of the Supreme Court of that State, says that, “Hays’ bid, though the highest, was but an offer to purchase, subject to the approval, or disapproval of the court; that he stood in the situation of a bidder at a master’s sale in chancery. It is by no means certain that he had anything to do with the question on which the court acted.”
The case of Delaplaine v. Laurence’s Administrator, 10 Paige 602, has been supposed to furnish an authority for such a proceeding. In that case the land of an intestate had been sold by the administrator under the orders of the surrogate, for the payment of debts, and for good cause the sale was set aside and ordered to be re-sold. Prom this decree and before the resale was made the purchaser appealed to the court of chancery, and a motion in that court having been made to dismiss the appeal, Chancellor "Walwarth overruled the motion and maintained the appeal, to be heard upon its merits. But upon a closer examination, this case furnishes
The case of Curtis v. Thompson, 29 Grat. 474, at the first glance, would seem to furnish some color of authority in support to the appeal under consideration, but the jurisdiction of the court of appeals in that case, may be well supported by its own peculiar circumstances, although that appeal was taken by the purchaser before the third sale therein ordered was made. The purchaser in that case, was the plaintiff himself, who had a deed of trust upon the property decreed to be sold, for a debt much greater than the alleged value of the property which was the only security the plaintiff had for his debt, more than half of which was interest. A decree had been entered which ascertained the amount of the- plaintiff’s debt, and decreed that the same be paid to him and that in case of default of payment the land should be sold to pay the same. At the sale made under this decree the plaintiff became the purchaser of the property at the price of $6,880.62. At the instance of the debtor this sale was set aside, on the grounds that the property had been sold at a greatly inadequate price as the defendant alleged that the land was worth $7,575.00. At the re-sale thereof, the plaintiff again became the purchaser of the property at the price of $6,880.62. At the instance oí the debtor this sale was also set aside for the same reason as was the first sale, and a third sale of the property 'was directed to be made. From these decrees setting aside the first and second sales, and ordering the third sale, the plaintiff before the third sale was made, appealed, and the court of appeals, without considering the question of jurisdiction, reversed said decrees and directed the first sale to be confirmed. This case may well be sustained by its peculiar
The case of Tally &c. v. Starke’s Administrator, 6 Grat. 339, may also be supposed to lend some support to the pretensions ofthe appellant. In-that case, the land was sold in parcels to three several purchasers, but before confirmation thereof, two of the purchasers, upon their petitions filed, were allowed to come in and except to the commissioner’s report of the sales made to them respectively, but their exceptions were overruled, and the sales to them confirmed, and from this decree they appealed. These purchasers, having been thus made parties to the suit, in which there was a final decree, to their prejudice, were embraced by the express provisions of section eleven of chapter sixty-four, R. Code 1819, and therefore, their right to appeal from said decree was unquestionable. It must however be admitted, that the conclusion we have announced, does not seem to be supported by the case of Roberts v. Roberts in 13 Grat. 639. We have been unable, in that case, to find any special circumstances on which the jurisdiction of the court of appeals to entertain the appeal could have been sustained, unless it is found in the fact that the sale itself was of a character so questionable, that Judge Samuels delivering, the opinion of the court, said : “ Seeing that the duty ol the commissioner was plainly violated; that the sale reported ivas in effect one of private contract, the court should not go into an inquiry upon the conflicting evidence, whether the price was a fair one.” For this cause the decree setting aside the sale to the appellant and directing the property to be re-sold, was affirmed. We are not, however, prepared to hold that the wrong-doing of the commissioner, which justified the circuit court in setting aside the sale, can of itself afford any good reason why the court of appeals should have taken jurisdiction, of the appeal of the purchaser, which was unwarranted by the statute. In that case, however, no question of jurisdiction was raised, considered or decided, and therefore, it can have but little weight in determining the question of
¥e are, therefore, of the opinion, that the appeal in this case was improvidontly allowed, and for this reason the
Dismissed.