83 W. Va. 512 | W. Va. | 1919
In a suit to partition lands there was ássigned to infants •and decreed to be sold for their benefit upon specified terms ■and conditions, subject to the usual approval and confirmation by the court, a tract of 22-y3 acres, part of the estate ■divided. The right so to dispose of the property by sale and the propriety or necessity therefor are not controverted or ■questioned in any manner.
The sale first partially effected and reported was not confirmed, but a readvertisement and resale were ordered because the purchaser failed or refused to comply with the
Thereafter and before but near the close of the term, the court, upon the petition and upset bid of Robert E. G-uy, an attorney practicing at the bar of the court, who, it is charged and not denied, had notice and knowledge of the proceedings in the cause and the efforts to consummate the sales, set aside the decree of confirmation, and for the fourth time directed the property to be sold, and it was sold, at the bar of the court in the presence and under the supervision of the judge thereof, and purchased by or for the Hess Coal & Coke Company upon competitive bidding for an amount about $8,000 in excess of the accepted offer of Provins, Ladone and Ladone,' the former purchasers, the sale to whom had" been ratified and confirmed without objection and the deed for the land directed, to be executed and delivered. From the decree last referred to Provins and Ladones obtained an appeal and supersedeas, and the writ is now before us upon their motion to reverse, made upon leave applied for and granted and notice of the motion duly given and served, and upon a counter motion made without leave first had, but after due notice, by Hess Coal & Coke Company to dismiss the appeal and supersedeas. The motion to dismiss rests solely upon the ground that, as Prov-ins and his copurchasers, pursuant to and as directed by the
Differently stated, the proposition relied on as warranting dismissal is that, as appellants accepted the benefit of the decree annulling the sale confirmed to them by receiving from the commissioner the money paid and notes executed by them, they waived the right to obtain and prosecute an appeal from the later decree confirming the sale to the appel-lee. The leave without which it is said the motion cannot be allowed or entertained may not always be essential. Where a meritorious cause for the dismissal of an appellate process exists, a motion therefor can be made at any time when not directly or impliedly prohibited by statute or some rule of law. Our statute, section 26, ch. 135, Code 1918, as amended by chapter 69, Acts 1915, however, seems to require leave and. notice of a motion to dismiss an appeal for cause, as well as for a motion to affirm or reverse the decree or judgment complained of. Whether it does or not as applied to the situation here disclosed ceases to be important, if, admitting the fact to be as stated by appellee, but not conceding the conclusion based on that fact, and according to the motion the same consideration and force it would justly be entitled to had leave been granted, it nevertheless appears that upon a full hearing upon the merits of the cause the fact relied on cannot avail to dismiss the appeal.
Have the matters urged by appellee the preclusive force and effect attributed to them? That is, does the acceptance of the money paid and the notes executed by appellants after the decree setting aside the sale confirmed to them deprive them .of the right to prosecute this appeal? The answer to the question stated depends upon whether or not the ac-cepta@ce was voluntary or inconsistant with a claim of right to appeal from another portion of the decree. The general
A similar exception to or limitation upon the rule is recognized in Bright v. Mollohan, cited, point 3 syllabus, where it is said: “A party availing himself of a decree as far as favorable to him cannot appeal from the decree wherein it is not favorable to him, if his acceptance of the benefit on the one hand is totally inconsistent with appeal 'on the other.” And in 3 C. J. 680, the same exception is noted: ‘‘The rule does not apply * * where the parts of the judgment or decree are separate and independent, and the receipt of a benefit from one part is not inconsistent with an appeal from another, * or in other cases in which the acceptance of the benefit or partial enforcement of the judgment is not inconsistent with an appeal and reversal. ’ ’ ' Notes 25 and 27, and cases cited. Still another form of exception to the rule is applied in Gay v. Householder, 71 W. Va. 277. And where the performance of a decree is involuntary, the right
Here the acceptance under protest of the money paid and notes executed was not such conduct as is inconsistent with a claim of right to reverse the decree. The portion of the decree directing their, return is clearly separate and independent from that part of the decree which totally deprives appellants of all their rights under the sale confirmed to them,. and the acceptance of the one at the direction of the court cannot reasonably be construed into a waiver of their right to appeal the other. The so-called benefit existed more in name than in fact, for appellants did not desire the return of their advances, but claimed full right in and to the property sold, and, being under protest, their acceptance cannot be said to have been voluntary. Provins, Ladone and Ladone not only protested against the receipt of the money and notes before accepting them, but on the commissioner, who pressed upon them for his own protection performance of the terms of the decree setting aside the former confirmatory decree, served the notice which we quote: “To John L. Hatfield, Special Commissioner. "We accept the check and notes for, the purchase money of the 22-% acres of land, which you sold us as special commissioner, in the suit of Roseoe Bakin vs. Marion B. F. Bakin, et ah, in compliance with the decree entered in the above styled cause, setting aside the sale and confirmation thereof to us, and directing you to return to us the said cash payment and the notes which were executed for deferred payments. But we further notify you that we stand ready, willing and anxious to repay same to you and fully comply with the terms of the decree entered in the above styled cause, confirming the sale of said property to us, if the appellate court shall so direct. This the 9th day of May, 1918. (Signed). ’ ’
From these circumstances we cannot say that appellants’ acceptance of the money and notes was voluntary or such an expression of full acquiescence in the decree as to amount to a waiver of their rights to an appeal and review of the case. This question, therefore, must be answered in favor of appellants.
So that, as remarked, this controversy is limited to am investigation respecting the rights of the purchasers under-a decree of sale of the land> the sales being made upon the same terms and conditions, save the consideration to be paid therefor, and each being- confirmed. Hess Coal & Coke Company at the time of its purchase is presumed to have known what the record revealed as to the prior sale to Provins, Ladone and Ladone. With this simplification of the issues there is presented for solution the original question as to the substantial rights of the parties involved.
There is a wide difference between the court’s power of control oimr a sale before and after confirmation. Trimble
But after it has been approved and confirmed by the court, thus completing the contract, it can be set aside only for good cause. It is then not a matter of discretion with the court, but some special ground must be laid, such as fraud, collusion, accident, mistake, misconduct upon the part of the purchaser or some other person connected with the sale, or such other cause as would warrant relief in equity had the sale been by the parties interested instead of by the court. Berlin v. Melhorn, 75 Va. 639; Langyher v. Patterson, 77 Va. 470; Todd v. Gallego Mfg. Co., 84 Va. 586; Insurance Co. v. Cottrell, 85 Va. 857; Allison v. Allison, 88 Va. 328; Syndicate v. Johnson, 100 Va. 774; Morrison v. Burnette, 154 Fed. 617; 16 R. C. L. 100. Public policy and 'fair dealing alike demand protection to purchasers at judicial sales, when they have complied with the terms pre
The impor Lance which attaches to the confirmation of a judicial sale is shown by the rights and duties which are the purchaser’s from that date. After confirmation it is an executed contract, and if not tainted by fraud or otherwise vitiated by other wrongful acts or conduct, participated in by the bidder, such confirmation relates to, and vests title in him from, the date of the sale. Taylor v. Cooper. 10 Leigh 317; Kable v. Mitchell, 9 W. Va. 492; Donahue v. Fackler, 21 W. Va. 124; Childs v. Hurd, 25 W. Va. 530, 535; Cale’s Adm’r. v. Shaw, 33 W. Va. 299; Stout v. Philippi M. & M. Co., 41 W. Va. 339, 350. See also Hardman v. Brown, 77 W. Va. 478. Not only does he get title upon confirmation, but ordinarily he thereby becomes entitled to possession of the property sold. Hudgins v. Marchant & Co., 28 Gratt. 177; Whitlock v. Johnson, 87 Va. 323. See also Childs v. Hurd, supra, p. 535. And, as said before, when the offer of the bidder is accepted and confirmed, it may be enforced against him.
In this case the inducement prompting the court to set aside a sale which it had already confirmed was the upset bid of $21,500 offered by Robert E. Guy, an advance of $1,137.33 over the price at which it had been sold to appellants. But the offer of a higher bid alone is generally held not to be one of the substantial reasons for which a sale will be set aside after it has been confirmed. Berlin v. Melhorn, supra; Langyher v. Patterson, supra; Todd v. Callego Mfg. Co., supra; p. 590; Allison v. Allison, supra; Syndicate v. Johnson, supra; Morrison v. Burnette, supra; 16 R. C. L. 100. See also Pewabic Mining Co. v. Mason, 145 U. S. 349, 367; Watkins v. Jones, 107 Va. 6. There is an unusual analogy between: the facts' of the ease of Berlin v. Melhorn, just cited, and the facts of the case before us. Several resales of the property had been made and for one cause or another had not been confirmed, except the last sale which was confirmed. but at the same term, the decree of confirmation was set aside and a resale ordered, but not confirmed. This ruling of the Virginia Court is cited, approved or followed and applied in numerous later decisions of that court, here
It must be admitted that the result reached on this question is' not consistent with certain statements in Bank v. Jarvis, 26 W. Va. 785, and 28 W. Va. 805, 811, where this court sustained a decree setting aside a prior decree confirming a sale and ordering a resale. This was done on.two grounds: (1) Because “the rule in this country seems to be that all decrees are in fieri and in the breast of the court and subject to its absolute control until the end of the term; that is, that it does not properly become a decree until the term ends;” (2) because it appeared to the court “that the land had ibeen sold at an inadequate price * * shown by the best possible evidence and in the most conclusive manner by the upset bid for an advance price of more than twenty per cent., * * of itself sufficient to set aside the confirmation and order a resale. (Kable v. Mitchell, 9 W. Va. 493).”
With respect to the first ground, it is true that all decrees are in the breast of the court until the end of the term, but that does not mean that they may be set aside except for good cause, and it is generally the rule that an advance bid is not such good cause. The ease of Thompson v. Land & Coal Co., 77 W. Va. 782, is an example of good cause sufficient to justify setting aside a confirmatory decree, for there the first decree “directing a sale of an undivided half interest had been made through oversight or inadvertence, (when) the entire interest in the tract should have been sold.”
With regard to the second ground, the court squarely states that an inadequate price evidenced by an advance bid is of itself sufficient to set aside a confirmatory decree, but cites to support that holding only the case of Kable v. Mitchell, 9 W. Va. 493, where, because of an advance bid, the sale wa.s set aside before, not after, confirmation, and hence could not be an authority to support that decision. It is the only authority cited in the case of Bank v. Jarvis, supra, to support its holding, and since in that respect it is contra to
True, as just stated, where the sale is yet inchoate and unconfirmed, it is the rule in this state that, if such sale appears from the tender of a properly secured upset bid to be at an inadequate price, it will be set aside and a resale ordered. Kable v. Mitchell, supra; Gillmor v. Rinehart, 73 W. Va. 779. But reason, principle and public policy require that some character of finality be given to confirmed sales, and that they be set aside only for some good cause, other than the offer of a higher bid, clearly set forth in the decree. Otherwise such sales will assume an inconclusive and unstable character, and bona fide purchasers will be deterred from bidding. The interests of the owner are protected by permitting resale on upset bids tendered before confirmation, when sufficient to show a substantial inadequacy of price. In Virginia.,, however, the courts refuse to set aside sales solely upon upset bids of 10% advance, even if tendered before confirmation. Moore v. Triplett, 96 Va. 603; Howell v. Morien, 109 Va. 200; Hardy v. Coley, 114 Va. 570; Litton v. Flanary, 116 Va. 710. See also note, Ann. Cas. 1914 D, 3. Likewise, according to the rule in this state respecting unconfirmed sales as laid down in the two cases cited above, the amount of advance required to warrant setting aside a sale depends upon the facts in each ease.
The mere phrase, “good cause appearing,” contained in a decree annulling a prior confirmation decree cannot be accorded the weight contended for by appellee. The indefinite recital means nothing, and an appellate court cannot lift the veil to see what it conceals. If good cause existed, that is, such cause as the decisions recognize and enforce as sufficient to vacate such a decree, as fraud, accident, mistake, the decree should have disclosed it in the interest of fairness and justice. Such matters ought not be left doubtful, uncertain or conjectural. The phrase, it is said or implied in argument, was inserted to refer to what had occurred at the bar of the court and in the presence of the judge during the progress of the hearing of the cause before and at the time
Acting upon the faith of the decree ratifying and approving the sale to appellants and undisturbed for nearly two weeks thereafter, E. M. Everly in the meantime innocently acquired rights disclosed by him in answer to the petition of Guy and insisted on by him in court at the hearing upon the petition, knowledge of which appellee must have had then and subsequently. The attempt to deprive Everly and appellants of these rights so acquired in the manner proposed by appellee, itself the owner or operator of coal lands in the same comity and perhaps near the land in controversy, and not prevented from bidding earlier so far as appears, does not recommend the course pursued by it, when to ¿lo so may work serious results to others relying on rights lawfully vested in them by judicial decree.
Hence it follows that the rights of the appellee are clearly subordinate to, and must yield to, those of the appellants, Provius, Ladone and Ladone. As other questions raised by counsel cannot affect the result in this or any similar case, they may be dismissed ivithout further discussion. The decrees complained of our order will reverse and hold for naught upon appellants’ motion, and remand the cause, with direction to reinstate and reconfirm the sale to them; upon the repayment of the cash consideration and the redelivery of the notes for the deferred payments.
Reversed and remanded.