CASE No. 881 | S.C. | May 13, 1880
The opinion of the court was delivered by
This case was heard before this court upon an appeal from a final decree, (12 S. C. 314,) and decided so far as to determine the relative priorities of the different classes'of creditors in respect of the fund to be produced by the sale of the road of defendant corporation. Pending that appeal this court passed an order to the effect that it was practicable and desirable that the railroad of the defendant corporation should be sold, but leaving the Circuit Court at liberty to determine when such sale should be made. The action of the Circuit Court, fixing the
The sale was ordered for the first Monday in June next, and from that order the present appeal was taken. The appellant urges no grounds of objection to an early sale that did not exist and apply with equal and even greater force at the time when the general instruction for the sale of the road was given by this court. At that time the relative priorities of the various classes of creditors entitled to participate in the fund to be made by such sale were not ascertained, while, at the present time, these priorities have been ascertained. The leading objection to the sale, at the present time is, in substance, that it has not been ascertained what individual creditors are entitled to be admitted to the several classes thus established. We see no reason why the sale should be postponed until all the parties know the precise interest they may have in the fund arising from the sale. It may be that they would, in some instances, be in a better condition to participate in the sale as bidders.
This consideration might have had some weight while the priorities of the respective classes were uncertain, but it would be going to an unreasonable extent to postpone the sale until the various individuals composing these classes had been ascertained by judicial orders. The primary duty of the court is to see that the property is sold at an early .day, so as to prevent loss from deterioration caused by delay.
If the court have any concern with the situation of the individual creditors as it regards their capacity to become bidders at the sale, that must constitute quite a subordinate matter. • We are satisfied with the conclusion of the Circuit judge that the condition of the road is such that an early sale is indispensable, and that to delay such sale to the prejudice of the fund for the mere purpose of facilitating some of the creditors who may desire to become bidders at the sale, would be without precedent and altogether unreasonable.
Objection is made to that part of the decree of sale that directs “ that an amount of cash sufficient to pay the undisputed claims to be reported by the referee,” “ and the costs and fees of the
The sum to be thus advanced is fixed in another part of the decree at $50,000, in the event that the report of the referee on that subject should not be made in time for the sale.
It is fairly to be presumed, from the amount beyond which the cash advances is not to go, that what was called the “ undisputed claims ” to be reported, are claims of a character demanding immediate cash payment, upon which time could not properly be allowed. Viewed in this light, the provision for cash payment is customary and reasonable. The fact that this provision may work injuriously to the executors of Cutting, cannot be assumed in the absence of proof to that effect, nor would, if established, afford ground for departing from a proper safeguard against spurious bidding. The personal inconvenience of a bidder, though resulting from the nature of his legal powers, is no ground for disturbing the arrangement looking to the bona jides of the bidding.
We see no reason for authorizing the master to demand a cash advance previous to the close of the biddings. Whatever convenience may result from possessing the means of eliminating spurious bids during the progress of the bidding,’may be counterbalanced by a tendency to deter parties from bidding, and' thus chilling the bids. The order must be modified by striking therefrom the words as follows: “ Of any bidder, during the progress of said sale, to deposit.” There is no proof before us-that the sum of $50,000 is in excess of the amount reasonably required for the purpose indicated by the order, and no ground exists for interfering» with that part of the order fixing such amount.
That part of the order describing the property to be sold follows the decree of this court, under which the sale‘is ordered.
The sale of the permanent property of the defendant corporation in the State of Georgia, as directed by the order of sale, was.
The order of sale is not defective in ordering the payment of the undisputed claims to be ascertained, even if it should happen that at the time of such payment there remains unascertained the interests of persons claiming admission to the several classes, provided that such claims, so paid, have a clear priority under the decree in this cause over those classes that remain to be .ascertained, as it regards only the persons entitled to participate in them. The order, properly construed, is in harmony with the view just expressed, and no reason appears for disturbing it.
The objection, based on the supposed interest of the state, raised not by the state, but by the non-resident executors of an estate, existing and administered within another state, if properly represented before us, could not have weight, as the state is •equally bound with all other parties to the decree under which the sale is ordered.
The exceptions presented in behalf of McBurney and others, ¡and the Savannah and Charleston Railroad Company, are disposed of by what has already been said.
The order of sale must be modified in the manner hereinbefore stated, and so modified, is affirmed, and the appeal dismissed as io all other matters.