77 Va. 135 | Va. | 1883
delivered the opinion of the court.
The appellant was a purchaser at a judicial sale of some lots in the suburbs of the city of Lynchburg. The commissioners named therein, sold under a decree of the corporation court of the said city, entered in the said court in the cause therein of Rucker v. Rucker, which was a suit for the sale of the lands of the ancestor, and distribution of the proceeds among the heirs. Said decree was rendered on the 18th day of October, 1875.
The sale was made on the 19th and 27th of October, 1876. Appellant purchased lots eight, nine, fourteen, fifteen, nineteen and twenty-three, on the first named day, at the sum of $855 for the whole—the sale to appellant was, along with other sales, reported to the court, and confirmed by the court on the 9th of November, 1876—without objection on the part of appellant, and the said purchaser, the appellant-here, not having complied with the terms of sale a rule was awarded against him; this rule not being served, no action was bad under it.
On the 8th of June, 1878, another rule was awarded which
There is no other objection to the regularity of the sale—-the commissioners made the sale in accordance with the terms and the directions of the decree conferring their authority, and within the discretion allowed them bjr the court.
The evidence shows that the sale complained of was made in the yard of, and before the front door of appellant; that he was present all the time, and made his purchases in person; that before the sale commenced, and before the sale was made of the lots purchased -by appellant, a proclamation was made that the enclosed land, embraced by the race-track fence, would be sold as a whole, if possible, and if sold as whole, that then, in that case, all streets and alleys laid down on the plat exhibited there, and with the advertisement, as running through the said race-track, would terminate at the said race-track, and not run into or through it, as laid down in the plat. It is also proved that when lot Eo. 23 was put up for sale, that the red flags used as markers, to designate the boundary of each lot, as offered for sale, showed, when set up around this lot, that the
Appellant claims that he knew nothing of the purpose to sell the race-track, as a whole, before the sale, but of course he had full knowledge concerning the whole matter after the conclusion of the sale, and yet he allowed himself to be reported to the court .as. a purchaser at the sale, made no objection to a confirmation of the sale to him, and indeed does not appear in any way until brought into court by the service of a rule upon him, and then makes objection to the sale as stated above.
The principles which govern this case are well settled. In delivering the opinion of the court in the recent case of Berlin v. Melhorn, reported in 1st Matthews, 639, Judge Burks says:’ “We think it may be safely laid down, as a general rule deducible from the authorities, that after a-judicial sale has been absolutely confirmed by the court which ordered it, it will not be set aside except for fraud, mistake, surprise, or other cause for which equity would give like relief if the sale had been made by the parties in interest instead of by the court.”
In the case of Brock v. Rice and others, reported in 27th Grattan, 812, Judge Staples, in ^delivering the opinion of the court, says “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
Whether the court will confirm the sale, must, in a great measure, depend upon the circumstances of such particular case. It is difficult to lay down any rule applicable to all cases; nor is it possible to specify all the grounds which will justify the court in withholding its approval.” ******** In this case the purchaser had become a purchaser at a judicial sale. In making the purchase, he had submitted himself to the jurisdiction of the court in the cause, as to all matters connected with the sale, or relating to him as purchaser. See Clarkson v. Read and others, 15 Grat. 288, 291; and if he had objection to make to the sale upon any ground whatever, he had his opportunity, and he should have availed himself of it to state his case in the court he had himself chosen. This he failed to do, and upon default made in complying with the terms of sale, the court having confirmed the sale without objection on his part, the court took the usual course according to the practice of awarding a rule against him, to show cause against a resale at his risk and costs of the land he had purchased. After the confirmation of the sale, he was, in equity, the owner of the land, subject to the lien retained for the purchase money, and he was allowed sixty days within which to comply with the terms of sale, after which, he still being in default, the land should be resold at his risk, and in this case, it was so decreed; and from this decree the appellant appealed to this court.
In Virginia, the maxim, caveat emptor, strictly applies to all judicial sales. Objection for defect in the bill must be made before confirming of the report of sale. Ordinarily, objection after confirmation comes too late. See opinion of Burks, J., in Long v. Weller, 29th Grattan, 351, and numerous cases cited. In that case the defence set up by the appellants in their answer to the
If the purchaser is entitled to any relief in this case, it must he on the ground of fraud, or mistake discovered after confirmation of sale. In such case the confirmation of the sale would not he an insuperable harrier to relief in the absence.of laches— acquiescence, waiver, or other circumstance rendering relief inequitable.” Same case, page 352.
. In this case fraud is not only not charged, but such charge is expressly disclaimed. The appellant in his answer says he brings no charge against the fairness of the sale. Was the mistake, or objection complained of by him, discovered after the confirmation of the sale? Such a conclusion is entirely excluded by the deposition of the appellant himself, for he shows that it was discovered on the day of sale, when the race-track was sold as a whole. Upon the principles stated above, then it was his plain duty to have made his defence in the court before confirmation of the sale, and without unreasonable delay. As we have said, by becoming the purchaser of the land, he had selected his forum, he had chosen to come into that court in that case, and had by that act submitted himself to that court on all questions concerning that sale and his purchase, and if objection he had, he should have made the same in that court before confirmation.
But there is no evidence in this cause that the appellant has suffered any injury; there is no evidence in the record showing,
We are of opinion, that there is no error in the decree of the corporation court of Lynchburg, and the same should he affirmed.
Decree aeeirmed.