Howard v. Jayne

86 So. 752 | Miss. | 1920

Smith, C. J.

delivered the opinion of the court.

This is an appeal from a decree of the court beloAV confirming the sale of certain real property to the appellee, Jayne, by Lewis and Ricketts, receivers of the Mississippi Building and Loan Association. The cause Avas presented to the court below on a petition by the receivers, praying for a confirmation of a sale by them of the land to Jayne, a Avritten objection thereto by the appellants, a bond obligating the objectors to make the property bring at least tAventy per cent, more than the price offered therefor by Jayne, together with the costs of the resale, and oral testimony.

It appears that some time prior to the filing of the petition by the receivers, asking for a confirmation of the sale, they were verbally authorized by the chancellor to accept an offer privately made to them by Jayne to purchase the property for a certain amount to be paid in several installments, and that he (Jayne) is now ready to pay the balance due by him under the agreement.

Section 506, Code of 1906 (Hemingway’s Code, section 262), provides that all “orders and decrees which a chancellor may make in vacation shall be entered and recorded on the minute book of the court in which the cause or matter is pending, and shall have the same force and effect as if made, entered and recorded in term time, and appeals may be had therefrom as in other cases.”

And section 649, Code of 1906 (Hemingway’s Code, section 411), provides that — “Every sale of real estate ordered by a decree of any court in chancery shall be made for cash, unless otherwise ordered by the court, and at such place and on such notice as may be directed in the decree; and if direction be not given, at such place and on such notice as is required in case of sales of land under execution at law.”

Neither of these statutes can be complied with by the rendition of mere oral orders and decrees, but only by such as are written and signed by the chancellor, either separately when rendered in vacation, or by the signing of the minutes of the court when rendered in term time. Consequently both of these statutes were here violated: First, because the order given the receiver was oral; and, second, because the sale contemplated by the latter is a public one at such place and on such notice as may be directed in the decree, and, if such direction be not given, then in accordance with the requirements for a sale made under an execution at law.

The appellee’s contention in this connection is that sales by a receiver and the order or decree of the court or chancellor relative thereto are not embraced within the terms of these statutes. There can be no merit in this con-' tentiou, because the first statute embraces “all orders and decrees which a chancellor may make in vacation,” and the latter “every sale of real estate ordered by a decree of any court of chancery,” which language of course includes sales made by a receiver under an order or decree of a court of chancery. The statutes do not except sales made by receivers from their terms, and we cahnot ingraft such an exception on them.

Several other questions are presented by the record, but it will not be necessary for us to decide them.

Reversed and remanded.