119 Ky. 401 | Ky. Ct. App. | 1905
Reversing.
D. B. Weaver died a resident of Livingston county, and his administrator brought this suit to sell the land 'owned by him for the payment of debts, and for the settlement of his estate. At the April term, 1903, a judgment was entered directing a sale of the real estate. The sale was made on June 1st, and at it appellant, R. B. Cowper, bid in lots 67, 68, 69, 70, and a part of lot 17, for $265. After the sale he seems to have concluded that the title of the intestate to the land was not good, and refused to execute a bond for the price. The commissioner on September 9th filed his report of sale, stating that Cowper had purchased the property at the sale, and had refused to execute a sale bond. On this report on September 25th the court, without taking any proceedings against Cowper or confirming the sale, entered the following order: “It appearing to the court by report of the master commissioner, W. I. Clarke, that he sold to R. B. Cowper lots 67, 68, 69, 70, and 71, and a part of outlot No. 17, as appears on the town plat of Smithland, Kentucky, and said Cowper’ having failed and refused to execute bonds iherefor, and said fact being made known to this court as aforesaid,- the said commissioner is here dii’ected to treat said sale to Cowper as if it had not been made, and readvertise said property for sale, and sell same in the full] way and manner set out and directed in the judgment filed herein, and will in all respects comply wiih .said judgment in taking bond, mailing report, and so forih and so on, as herein set out; and this cause is continued.” The resale was made on November 2, 1893, and at it the property brought the sum of $32. Thereupon, at the December term of the court, the court awarded a rule against Cowper to show cause, if any he could, why he should not pay the difference between the bid made by him and the bid made at the second sale, which
In Makemson v. Brann, 37 S. W., 495, 18 Ky. Law Rep., 584, the commissioner sold a tract of land, and, the purchaser failing to execute bond, readvertised the property, and made a second sale at the next county court. He then reported to the court, both the sales. The court confirmed the second sale, and ordered the property conveyed to the purchaser. After this a rule was taken out against the purchaser at the first sale to show cause why he should not pay the deficiency. It was held that he was not liable. The court said: “While an accepted bidder at a judicial sale who fails to comply with his bid may, by proper proceedings, be required to pay the damage resulting from such failure, which would include the difference between the bid, if any, and. the amount realized on the final sale, if the property sold for less) on that sale than at-the former sale, yet, where the commissioner has elected to treat the bid as a nullity, and has proceeded to advertise and resell the property, and the second sale has been confirmed without objection, it is -then too late to proceed against the first purchaser for failure to comply with the terms of the sale.” The commissioner, in making the sale, is the agent of the court. His powers are limited by the orders of the court. He has no power to treat a sale as a nullity, and in the case cited the judgment of the court turned, not on the action of the commissioner, but on the order of the court confirming the action of the commissioner, for
Judgment reversed and cause remanded, with directions to discharge the rule against appellant