| Va. | Oct 16, 1882
delivered the opinion of the court.
The court is of opinion that the sale of the land in the bill and proceedings mentioned ought to be set aside and a resale ordered. The commissioners, in their report of the sale, say the sale is believed to be much below its value. The commissioner in chancery, to whom the matter of taking the accounts was referred, reports the land as worth $4.50 more per acre than the price for which it was sold, making a difference of more than $800. In an affidavit given by three of the adjoining land-holders, it is stated that the tract is worth $32.50 per acre, which is $12 in excess of the price it commanded at the commissioner’s sale. It seems also, that an upset bid of ten per cent, was made by a responsible party with good and sufficient security. Against these facts there is not a scintilla of opposing testimony. It does not appear that the purchaser at the sale is insisting on its confirmation. So far as the record discloses, he was not represented by counsel in the court below. Nor is he here insisting on the affirmance of the decree.
The only persons demanding a confirmation of the sale, are certain lien creditors whose debts are well secured, and who would not have been prejudiced by a resale. It is impossible to resist the conclusion that the property was sold at a grossly inadequate price, and that a resale is necessary in justice to the rights of the debtor and the junior creditors.
This court is therefore of opinion that the circuit court ought not to have confirmed the sale reported by the commissioners, but, instead, ought to have directed a resale of the land upon such terms as it might deem just and proper under all the circumstances.
The principles which control the court in setting aside
In most of the cases the controversy has been between the purchaser at the sale on the one hand, and parties interested in the land on the other. And the court has sometimes refused to interfere with the sale, unless upon a very substantial upset bid.
But it has repeatedly declared that no fixed rule can be laid down on the suject, and whether it will confirm or set aside a sale must depend upon the circumstances of each particular case.
The court' is further of opinion that the appellant, Han-sucker, in pursuance of a contract entered into with Mrs. Lucinda Briggs and others, paid upon the debt due them with interest at the rate of eight per cent, per annum from the first of October, 1876, to the first of October, 1879.
This fact is stated on the face of the commissioner’s report, and although at the time that report was adopted no exception was taken to the allowance of the usurious interest, yet it seems an exception was afterwards endorsed on the report making such objection.
It does not appear, however, that this exception was ever called to the attention of the court below, or of any of the counsel. This court cannot therefore reverse the decree upon that ground. Inasmuch, however, as the decree must be reversed for other reasons, and the cause remanded for further proceedings, the circuit court can then pass upon the exception, disallow the usurious interest, anfl apply such excess as a credit upon the debt, in conformity with the decisions of this court in Mosely, Trustee, v. Brown et als., reported in the September number of the Virginia Law Journal, 1882, p. 568, and also supra p. 419.
The court is further of opinion that the other objections made in the petition for an appeal are not well taken, and were properly disregarded by the circuit court. But,- for the errors already mentioned, the said decree must be reversed and annulled, and the cause remanded to the circuit court, there to be proceeded with in conformity with the views here expressed.
Decree reversed.