190 Iowa 996 | Iowa | 1921
— The general contention for Sonken is that, by virtue of his bid, such a right to confirmation vested in him that it was beyond the power and discretion of the court to deny it. The argument is that he was the highest and best bidder at the sale, and' that Wickham had no right to present’ a bid thereafter, and that the court had no right to consider the bid which ' Wickham presented. Authorities are cited from other jurisdictions in support of this contention. We have little occasion to deal here with authorities from other jurisdictions, for the reason that there is abundant conflict to be found there. Cases from other jurisdictions holding the contrary view are cited and quoted from in our recent case of Saunders v. Stults, 189 Iowa 1090. It is enough that the question is not res integra in this state, and that we have no occasion to look beyond our own cases thereon.
Code Sections 4266 and 4269 provide as follows:
“Section 4266. If the sale is approved and confirmed by the conrt, an order shall be entered directing the referees, or any two of them, to execute conveyances; but no conveyances can be made' until all the money is paid, without receiving from the purchaser a mortgage on the land so sold, or other equivalent security.
“Sec. 4269. If the sales are disapproved, the money paid and the securities given must be returned to the persons respectively entitled thereto.”
The power of a receiver is analogous to that of a referee. Under Code Section 3824, the power of a receiver is defined, and made “subject to the control of the court or judge.” In Loyd v. Loyd, 61 Iowa 243, the court refused the approval of a sale, though no higher bidder was presented. The bidder appealed
“The statute provides: ‘After completing the sale, the referee must-report his proceedings to the court,’ and, ‘if the sale is approved and confirmed by the court, an order shall be entered directing the referees, or any two of them, to execute conveyances pursuant to the sale.’ Code Sections 3300, 3301. The approval of the sale is essential. No conveyance can be executed until this has been done. A discretion is reposed in the court in the premises, not, however, of an arbitrary character, but a legal discretion, for which a valid and sufficient reason may be given. It is the right of the parties in interest to obtain the highest price they can, and they may ask the court to open biddings. ‘ This is no wrong to the person who bid most at the former auction. His bid, though the highest, was but an offer to purchase, subject to the approval or disapproval of the court, and, in approving sales made in partition, it is the duty of the court to regard primarily the interest of the heirs. ’ Hamilton’s Estate, Hay’s Appeal, 51 Pa. St. 58; Childress v. Hurt, 2 Swan (Tenn.) 487. In this last case it is said: ‘Until confirmation of the report, the purchaser is not compelled to complete his purchase, nor is he entitled to a conveyance, nor to be let into possession of the estate; neither is he liable for any loss or injury by fire or otherwise which may happen to the estate in the interim.’ * * * Counsel for appellant insist that inadequacy of price alone is not sufficient to justify the court in setting aside a sale of this character. They have cited a large number of cases in which, it is said, this has been determined by this court. But in the cases cited the sales were all made by a sheriff under execution, or by a power expressly conferred upon a trustee, or the like. In such cases, no approval of the sale by the court is required, nor is any discretion reposed in it, as in the case at bar. In sales under execution, the right to redeem ordinarily exists. Not so in the ease at bar, and a different rule exists in such eases.”
In Brown v. Traul, 140 Iowa 728, the appellant was the highest bidder at a sale by referee, and claimed the right to a confirmation of the sale. It is true that, in that case, the rights of minors were involved, no guardian ad litem having been
“The intervener, as a proposed purchaser, had no vested right, certainty none paramount to the right of the minors to be represented by legal guardian. The intervener was, in legal contemplation, only a bidder. The bid could not become effective as a purchase until approved by the court. Until such approval, neither the bidder nor the estate was bound.”
In Harney v. Crowley, 184 Iowa 1101, the question was before us. The appellee was the high bidder at a sale by referee. His bid was in good faith, and without fraud. The referee reported the sale, and asked confirmation. The parties in interest filed objections on the ground of inadequacy of price. On the hearing, a witnéss offered a substantially larger price. The court below ignored this higher offer, and confirmed the sale to the appellee. We held here on appeal that the larger price of- = fered at the hearing by the witness was not only a sufficient reason for refusing the approval of the lesser bid, but that, in view of its large excess over the bid of appellee, it was a compelling reason, and that the court ought to have refused approval. We said:
“The sale was conducted openly and fairly by the referee. Nevertheless, the highest bid was, in a legal sense, only an offer, and so continued until presented to and approved by the court. At the hearing before the court, the defendants produced a witness who offered to pay for the land $168 per acre. This was an advance of $19.50 per acre upon the bid presented to the court for approval. The witness Carmody, who made such bid, is conceded to be financially responsible, and able to perform the same. The question presented for our consideration is whether the discretion of the trial court was so broad as to preclude us from reviewing the particular order of approval entered in this case. We think the district court should be deemed to have a large discretion in this class of orders, and that it is not necessarily bound to refuse its approval of the highest bid at a .referee’s sale simply because somebody raises the bid at the time, of presentation. It has, however, at all times, the undoubted power to refuse its approval of the high bid at the sale. Theoretically, it must be true, also, that a situation may be
In Central Tr. Co. v. Gate City Elec. St. R. Co., 96 Iowa 646, the question here involved was quite fully considered. In that case, there had been a decree of foreclosure and an order of sale to be made by a commissioner without redemption, the sale to be subject to the approval of the court. A public sale was had, and a purported acceptance of a bid thereat, which was reported by the commissioner to the court for confirmation. Objections were filed by the parties in interest to the report of the commissioner, and to the bid as inadequate. The court overruled the objections and confirmed the sale. The bidder was Hubinger, and he was the only appellee in the ease. The order of confirmation was reversed in this court. We said:
"No one contests the application for a resale except Hubinger. In this respect, the case is somewhat peculiar. He is not a creditor, nor has he any interest except such as arises from his bid.. It should be borne in mind that the only authority possessed by the commissioner was to receive and report the highest and best bid for the consideration' and action of the court.
In the recent case of Saunders v. Stults, 189 Iowa 1090, the same question is fully discussed. Therein we said:
‘.‘The appellants’ contention overlooks material facts: that is, that the receiver was simply the officer or agent of the court; that this sale was not a completed sale,- that it was not in the power of the receiver to make a completed sale which would bind the court to its confirmation; and that those who buy at a receiver’s sale, such as we have in this case, take with knowledge of the fact that the contract of sale is not binding on the receiver until the same is presented to the court and approved by the court; that a sale such as we have here is a sale without the right of redemption.” *
The opinion in this latter case contains many excerpts from eases in other jurisdictions which we need not reproduce. Under our foregoing eases, the trial court acted within its lawful discretion in refusing the Sonken bid, regardless of whether there was a higher bid or not. Even if Wickham’s bid were illegal, as having been made out of time, as contended by Sonken, this did not entitle Sonken, as a matter of right, to demand the approval of his bid.
‘ ‘ In considering this ease, it is important to bear in mind the rules of law governing judicial sales. All the authorities agree there is a wide distinction between an application to set aside a sale after it is approved by the court, and an application to withhold a confirmation. A decree of confirmation is a judgment of the court, which determines the rights of the parties. Such a decree possesses the same force and effect of any other adjudication by a court of competent jurisdiction. But before confirmation the whole proceeding is in fieri, and under the control of the court. Until then, the accepted bidder is not regarded as a purchaser. His contract is incomplete, and he acquires by his bid no independent right to have it perfected. ’ ’
None of the parties in interest in this case complain of the action of the court. Sonken’s attitude is that he acquired some sort of a right or lien upon the subject-matter of the litigation, and that creditor and debtor must wait and hold their rights in suspense until the new litigants, the bidders, may fight out their respective claims. It is not the policy of the law of this state to permit mere bidders at a sale subject to the approval of the