3 Md. Ch. 514 | New York Court of Chancery | 1851
This case is submitted upon exceptions to the sale reported by the trustee, Mrs. Margaret Wootten, and the depositions and arguments, in writing, of the solicitors of the parties, have been read and carefully considered by the Court.
But though the party objecting to the sale in this case has, in my opinion, failed in showing anything affecting its bona fides, he has interposed one objection which, under the circumstances, appears to me to be insuperable. This objection refers to what the late Chancellor called the “mere modal regulations,” for the government of the trustee in putting the property in the market. These regulations are prescribed by the decree, and it will be found, I think, upon an examination of the precedents, that a departure from them in any essential respect, without first attempting to dispose of the property in conformity with them, will always prevent a ratification of the sale, if objection be made. In Andrews vs. Scotton, 2 Bland, 643, it was said, “ If a trustee who is directed by the decree to sell the tract of land entire, and at public sale, should sell it at private sale, and in parcels, or in any other manner different from the mode prescribed, and report satisfactory reasons for so doing, and no objection is made, the sale may be ratified.” It would appear from this case that if the trustee undertake to sell the property in a mode not warranted by the decree, he must not only report satisfactory reasons for so doing, but even then the sale will not be ratified if objection be made; and in the same case it is said, that the Court, acting as proprietor, and as if the property were its own, will avail itself of information from every quarter from which it may be derived; from the original parties to the suit, or the creditors for whose satis
But though the trustee must conform to the directions of the decree with regard to the manner of putting the property in the market, and any material deviation therefrom in the first instance, and without an attempt to sell in the mode prescribed, will defeat a sale made in a different manner, if the objection is interposed; yet still, after the trustee has once offered the property in the market, in the mode prescribed by the decree, and has been unable to sell it in that way, he may dispose of it in a different mode. The reason for this, as stated by the Chancellor in Gibson’s case, 1 Bland, 144, is, “ that the trustee being in all cases required to make a report in writing of only such a salo as he can, on oath, state to have been in all respects fairly made, which cannot be ratified without consent until public notice has been given to show causo, if any there be, why it should not be confirmed, there can be no danger or inconvenience in allowing him to deviate from the prescribed manner and terms of sale, after the property has, by advertisement, and an actual public offer to sell at the time and place appointed, been completely put in the market.”
It is quite clear, therefore, if these cases are to be regarded as furnishing the true rule upon this subject, and I am, upon full reflection, satisfied they do, that this Court will not ratify a sale made by its trustee when, without an attempt to sell in the mode prescribed by the decree, he undertakes to dispose of the property in a different mode. It must be obvious that those portions of the decree which direct how, and in what manner, and upon what terms the property should he sold, are all mere unmeaning words if the trustee may, without an attempt to comply with them, sell in such mode and upon such terms as to him may seem lit. When, to he sure, the property has been put in the market, in the manner and upon the terms directed by the decree, and the effort so to sell has been unavailing, there can be no objection to the trustee’s accepting a bid upon different terms, or to his disposing of the property at private
In the case now under consideration, the agent of this Court no doubt, from inadvertence, has departed from one of the most important'directions of the decree, that of the public notice to be given of the time, place, manner, and terms of sale, and it would, as I conceive, be establishing a precedent full of danger, to ratify a sale under such circumstances in the face of an objection for that cause.
The trustee appears to have adopted the suggestion of Mr. Hill, and accordingly, on the 13th of December, advertised the property to be sold on the 17th of the same month, and the proof of the editor and publisher of the paper in which it was inserted, shows that it appeared in his paper but once, that being the day of the date of the advertisement. There was, therefore, but four days’ notice given, though the decree expressly requires the trustee to give “at least three weeks’ notice, inserted in some newspaper printed in Prince George’s County, and such other notice as she may think proper, of the time, place, manner, and terms of sale.” There was, therefore, a total failure to comply with this most vital direction of the decree, a direction which, perhaps, of all others, is most essential to the safety of persons interested in the sale of the estates of deceased persons, because unless public notice is given, competition, so indispensable to the disposition of property at its full value, can never or very rarely be secured.
It cannot be said that this sale should be ratified, because there was one attempt to sell the property at public auction after due notice, which was unavailing. The state of the weather, and the absence of bidders, on attempt to sell on the
Now, will it do to say that the property was sold for a fair price, and therefore the sale should be confirmed ? The answer is, that when the decree directs “ that the property shall be put in the market by advertising and offering it for sale,” the trustee must follow the directions, but after he has done so, if it cannot be sold at public auction upon the terms specified, he may accept of a bid' upon different terms, or he may dispose of it at private sale, and then it will be for the Court to say, when the trustee shall have made his report, whether, under all the circumstances, it ought to be ratified.
The true test of the value of property, is what it will bring in the market, and the interest of suitors requires that it shall be subjected to that test, and it would be dangerous for the Court, before that has been fairly tried, to enter into an examination of witnesses, who, however intelligent and unobjectionable in all respects, may not be able to supply the place of the only perfectly safe standard.
Upon the whole, then, though I see nothing in the evidence to induce a belief that the property sold at an undervalue, or that it would have brought more if sold in parcels, and although I am entirely satisfied that the.sale was in all respects conducted with the most perfect fairness and propriety, yet still I consider it my duty to set it aside, and send the property again into the market, because in making the sale, the trustee did not act in conformity with one of the most important directions of the decree, and because in confirming it, I should be making a new, and in my opinion, a dangerous precedent.