13 W. Va. 744 | W. Va. | 1878
delivered the opinion of the Court:
One branch of this ease was before this Court heretofore, and is reported in 10th West Virginia R. 298. From and to the decrees, rendered in the cause by the circuit court of Kanawha county, on the 13 th day oí November, 1869, the 15th day oí July, 1872, and the 24th day of January, 1874, Bradley, Kyle & Co., creditors oí A. M. Smith, and parties to this suit, claiming to be judgment lien creditors of said Smith, obtained an appeal with supersedeas to this Court. The said decree of the 11th day of November, 1869, among other things, directed certain land of the defendant A. M. Smith to be sold to pay certain judgment lien creditors, &c., their debts; and appointed special commissioners, viz: Edward JB. Knight and William H. Hogeman, to make the sale. This Court on the 1st day of May, 1877, decided said cause upon said appeal and supersedeas, and reversed a part of said decree of the 11th of November, 1869, but did not reverse that part of the same, directing the sale and appointing commissioners to make the same, but affirmed the same.
It appears from the report of said special commissioners, that on the 5th day of August, 1874, before said appeal and supersedeas were obtained and became operative, the said special commissioners, Knight and Iloge-man, pursuant to said decree of sale, sold in front of the court house of Kanawha county at public auction to the appellants, Bennett, Bnrdett and Bradford, they being the highest bidders, a tract of three thousand eight hundred and eighty-one acres of land, belonging to Allen M. Smith, and lying on Cobb creek of Little Coal river, and shown on map, filed in this cause, marked “map referred to in report of commissioners of sale,” at the price of $3.36 per acre, or $13,040.16 for the three thousand eight hundred and eighty-one acres; also, that the purchasers paid $2,608.03 of the purchase money in hand to said commissioners, and for the
It appears by the record, that on the 12th day of December, 1874, the following order was made by the-circuit court of Kanawha county in this cause, viz: “Edward B. Knight and William H. Hogeman, special commissioners, tendered a report in this cause, showing, that they had sold to Edward A. Bennett, John S. Bur-dett and William A. Bradford a large tract of land, the property of the defendant, Allen M. Smith, and that they have in their hands the sum of $2,608.03, being the cash payment made by the purchasers at the said sale ; and on motion of said commissioners the said report is ordered to. bo filed. And it appearing to the court, that by reason of a writ of supersedeas, allowed by the Supreme Court of Appeals of West Virginia, to the decree, under which the said sale was made, this court cannot now act on the said sale; and that it is proper, that the fund in the hands of the said commissioners should be preserved, and made productive, pending such supersedeas, it is therefore ordered, that the said commissioners do loan out the fund in their hands, as aforesaid, taking from the person or persons, to Avliom the same is loaned, his or their note, with good personal security, payable on the first day of the next term of this court, for the amount loaned such persons, and legal interest from the date of such loan.”
It also appears, that before the date of such order of the 12th day of December, 1874, the said defendant, A. M. Smith, by his counsel, on the 25th day of November, 1874, endorsed on said report of sale exceptions thereto, as follows: “The defendant, A. M. Smith, objects and excepts to the confirmation of this report, and for the following reasons: 1. Inadequacy of price given, the property being worth $10.00 per acre, as shown by the affidavits filed in this cause. 2. Title to certain parts of
“ A. M. Smith, By Counsel
It appears, that on the 19th day of May, 1877, the said circuit court made and entered the following order in the cause, viz: “ Special commissioners, Via. H. Hogeman, and E. B. Knight, tendered a report in this cause, which is ordered to be filed. And it appearing from the said report, that the defendant, Allen M. Smith, has been selling trees, timber and logs from the three thousand eight hundred and eight-one acre tract of land on Cobb’s creek and Little Coal river, heretofore sold by said special Commissioners, under a former decree of this court, to AY. A. Bradford, E. A. Bennett and J. S. Bur-dett, on the 5th day of August, 1874, which sale has been reported by said special Commissioners to this court, and no action yet had thereon since the sale aforesaid; and that W. L. Childers, Bo man Pickens,-Bell,-Kidd,-Smoot and-Moore, as vendees of said Smith, since said sale have been - cutting and removing and are cutting and removing from said tract large quantities of oak, poplar and walnut timber, and transporting the same out of the State;*749 nd that they have on hand a large quantity of oak poplar, walnut and other lumber in logs, staves or sawed' lumber, on said tract and in Coal and Kanawha rivers on the way to market, which they have cut from said tract as vendees of said Smith since said sale, it is therefore adjudged, ordered and decreed, that said Allen M. Smith, Wm. L. Childers, Homan Pickens,-Pell, ■— - Kidd,-Smoot and-Moore, and each of them, their agents and employes, be restrained, inhibited and enjoined, until the further order of the court, from selling, cutting on, or removing fiom, said three thousand eight hundred and eighty-one acre tract, sold by said special commissioners, Ilogeman and Knight, to said Bradford, Burdett and Bennett, on the 5th day of August, 1874, any timber, logs or trees of any kind, and from removing from said tract, or out of Coal or Kana-wha river, or from any other place within the jurisdiction of this court, any logs, trees, staves or lumber of any kind or description, which have been cut by said parties, or either of them, their agents or employes, on the tract of land aforesaid, since the said 5th day of August, 1874. It is further ordered that each of said parties be served with certified coinés of this order of injunction.”
The report of the special commissioners referred to in the foregoing order is as follows :'
“Judge of the Circuit Court of Kanawha County, West ■ Virginia:
“ The undersigned, heretofore appointed special commissioners in the above entitled cause, now pending in your Honor’s court, filed a report in December, 1874, showing, that pursuant to a decree of sale, rendered in this cause in 1869, they had made sale of a tract of land on Cobb’s creek and Kittle Coal river, belonging to the defendant, Allen M. Smith, of three thousand eight hundred and eighty-one acres, to "VY. A. Bradford, E. A. Bennett and John S. Burdett, on the 5th day of August, 1874. After said sale was made, and before said report was filed, an appeal was taken by Bradley, Kyle & Co.,*750 Pai’lies to this suit, from said decree oí sale to the SuPr(ime Court of Appeals of the State of West 'Virginia, w]iere saj¿[ appeal remained pending till April last, when gaid Court of Appeals affirmed said decree of sale upon the appeal aforesaid. By reason of said appeal the aforesaid report of sale of your commissioners has never been acted upon, but action will be asked thereon during the present term.
“Your commissioners have just been assured, and so report, that since said sale by your commissioners of said three thousand eight hundred and eighty-one acre tract to said Bradford, Bennett and Burdett, the defendant, Allen M. Smith, has sold off large quantities of trees, timber and logs from said tract, and especially oak, walnut and poplar timber, and is rapidly stripping said tract of all of its valuable timber; that Wm. L. Childers, Roman Pickens, - Bell, - Kidd, - Smoot and -- Moore are some of the parties, to whom said Smith has sold and is selling timber from said tract since said sale; and that such parties, as vendees of said Smith, are now cutting down and removing from said tract large cpiantities of oak, walnut and poplar timber and transporting the same out of the State, and they have on hand on said tract, and in Kanawha and Coal river on the way to market, a large amount of oak, walnut and poplar and other lumber in logs, staves or round lumber, which they have cut from said tract, as such vendees of said Smith, since said sale, and all of which will be speedily removed, unless this Court interferes to prevent them. Your commissioners believe, that this conduct is an outrage upon the rights of the purchasers, who have called upon your commissioners to protect them in the premises; and they therefore report the facts to the Court for its action, and return herewith the affidavit of E. A. Bennett and W. A. Bradford, as part of this report. Respectfully submitted,
“WM. H. HogeMAN,
“E. B. Kotgut,
“Special Commissioners’
“State oe 'West Virginia,
“ County of Kanawha, to-wit:
“E. A. Bennett this day personally appeared before me in my said comity and made oath, that be is one o the purchasers of the tract of three thoueand eight hundred and eighty-one acres of land on Cobb’s Creek and Little Coal river, sold by W. TI. Iioge-man and E. B. Knight, special commissioners in the chancery cause of Hyman, Moses & Co. v. Allen M. Smith, et al., pending in the circuit court of Kanawha county aforesaid, on the 5th day of August, 1874, at public auction, under a decree of said court rendered in said Realise; that said sale has been reported by said special commissioners 'to said court in said cause, but no action has been had by said court upon said report, except to file the same, for the reason that said cause has ever since said sale been pending in the Supreme Court of Appeals, upon an appeal taken from the decree of sale rendered therein ; that said appeal was decided in April last by said Supreme Court affirming said decree of sale.
“The affiant further makes oath and says, that since the said sale the said Allen M. Smith has sold to various parties large quantities of trees, logs, lumber and timber from said tract of land; that the parties, to whom he, the said Smith,has made sales of logs,lumber, timber and trees, from said tract of land since said sale, have actually, since said sale, cut down and removed from said tract an immense amount of poplar, walnut and oak timber, and are now cutting down and removing from said tract large amounts of oak, poplar and walnut timber, some o which is in Coal and Kanawha rivers, and within the jurisdiction of the court, and have a large quantity of timber, cut down upon said tract, and not yet removed therefrom, partly in logs and partly in staves and sawed lumber, but which will be removed in a short time, ta-*752 less prevented by court from so doing; that the following ' are some of the parties, to whom said Smith has sold logs, trees, timber and lumber from said tract since said sale, and who have, cut and removed, since said sale, and are now cutting and removing from said tract, large amounts of oak,walnut and poplar timber and lumber, and who now have logs, staves and sawed lumber, cut upon said tract since said sale, and not yet removed therefrom, to-wit Win. L. Childers, lio in an Pickens,-Bell,-Kidd; -Smoot and-Moore.
“Given under my hand this 18th day of May, 1877.
“E. B. KNIGHT,
“Notary Public for Kanawha County, West Va.”
“State op West Virginia,
“ County of Kanawha, to-wit:
“W. A. Bradford this day personally appeared before me in my said county and made oath, that he is also one of the purehasei’s of the said three thousand eight hundred and eighty-one acre tract of land, mentioned in the foregoing affidavit of E. A. Bennett at the sale made by special commissioners, Hogeman and Knight, as set out in said affidavit; that he has just heard the said affidavit of E. A Bennett read, and has 'recently been • upon the tract of land aforesaid, and is personally cognizant of the matters, stated in said affidavit, and that said affidavit is . true as he verily believes.
“Given under my hand this 18th day of May, 1877.
“E. B. Knigiit,
“Notary Public for Kanawha County, W. Va.”
Afterwards the said circuit court made the following decree or order in the cause, viz:
“And at another day, to-wit: At a circuit court held, as aforesaid, the 2d day of June, 1877, on motion of the defendants to the injunction awarded in this cause, during the present term, said injunction is so far dissolved, as to permit said defendants to dispose of the logs, timber, staves and lumber, which have been cut upon*753 the three thousand eight hundred and eighty-one acres of land, in the injunction order mentioned, since the sale to Bennett, Bradford and Burdett, reported in this cause, upon the said defendant paying to W. H. Hogeman and E. B. Ivnight, who are hereby appointed receivers for the purpose, the value of such logs, timber, staves and lumber before the same was cut from the land, and such payment is to be made, before said defendants are to be allowed to remove or dispose of any of said logs, timber staves and lumber; and the said injunction order, except as above modified, is to remain in full force and effect till the further order of the court; and said Hogeman a,nd Knight are required to give bond, as such receivers, before the clerk of this court in the penalty of $1,000.00 with good security, conditioned as required by law.-”
And afterwards, at rules held in the clerk’s office of the circuit court of Kanawha county, for the month of November, 1877, came the administrators of Allen M. Smith, decease 1, by their attorney, and filed their demurrer and answer to the petition of Bennett, Burdett and Bradford, heretofore filed in this cause.
It appears, that on the 8th day of November, 1877, it was suggested upon the record, that since the last term of the said circuit court, the defendant, Allen M. Smith? died intestate, and the cause was revived in the name of the administrators, widow and heirs of the said Allen M. Smith, deceased.
Afterwards, on the 3d day of December, 187-7, by an order of court, then made, it appears, that Hogeman and Knight, theretofore appointed receivers in this cause, this day tendered their report, number one, as such receivers, which report is ordered to be filed. The report referred to in the last-named order, is as follows, viz:
Judge of the Circuit Court of Kanawha county, Wed Virginia :
“The undersigned, heretofore appointed receivers in this case, to collect and receive from the parties cutting logs*754 and staves, &c., on tlie land sold to Bennett, Bradford 'andBurdett, the fair value of said logs, staves, &o., before the same were cut, beg leave to report, that thev have ascertained, that B. Pickens and W. L. Childers have cutupon the tract of land purchased by E. A. Bennett, John S. Burdett and ~W. A. Bradford, as heretofore reported to the court, since said sale was made, one hundred and eighty-four thousand nine hundred and eighty-five staves, under a contract they, the said Pickens and Childers, made with A. M. Smith since said sale, by which contract the said Pickens and Childers were to pay said Smith $2.50 per thousand, and are willing to pay the same price now to the commissioners of the court, before said staves are removed. Your commissioners have also ascertained, that D. C. Smoot, or parties acting under him, have cut on said tract of land since the 18th day of August, 1876, walnut logs measuring about nine thousand seven hundred and sixty-eightcubic feet,and that by a contract, made between said Smoot and said Smith, the said Smoot was to pay six cents per cubic foot for said logs. Your commissioners are informed and so report, that the prices aforesaid are good fair prices for staves and walnut logs in that locality. The walnut logs are still on the premises, and commissioners have warned the parties not to remove the same, till paid for. Your commissioners are informed, that said Smoot paid said Smith $100.00 on said contract, and that said Smith used the larger part, if not the whole, of said sum so paid him, in paying taxes, assessed on said tract since said sale to said Bennett, Burdett and Bradford ; and the said Smoot has also, as your commissioners are informed, been compelled to pay the taxes on said tract for the year 1876, to prevent said logs being sold by the sheriff for the year 1876 under a levy or distress made on said logs for said taxes ; but your commissioners are not at present advised of the amount of taxes so paid by said Smoot. All of which is respectfully submitted.
“WM. H. HogeMAN, 1 B d „ “E. B. KNIGHT, / -necaM» s.
“This cause came on to-day to be heard on all papers formerly filed, and proceedings formerly had therein, including the mandate of the Supreme Court of Appeals, and especially on the report of commissioners "William H. Hogeman and Edward B. Knight, heretofore filed herein, showing, that on the 5th day of August, 1874, they sold, pursuant to the decree entered in this cause, to William A. Bradford, Ed wai’d A. Bennett and John S. Burdett a tract of three thousand eight hundred and eighty-one acres as the property of Allen M. Smith, deceased,, described in said report, at the jmee of $3.36 per acre, or $13,040.16 for said tract, and on the exceptions, endorsed on said report in behalf of Allen M. Smith, which exceptions are now formally’withdrawn by the administrators and heirs of said Smith, and on the exception, endorsed on the said report by the purchasers, Bradford, Bennett and Burdett, and the petition of said purchasers referred to in said exceptions, and the demurrer and answer to said petition filed by the administrators of Allen M. Smith, deceased, to which answer the petitioners replied gencrally, and on the report of commissioners Hogeman and Knight, relating to the timber &c. cut from the property so sold as aforesaid, which was filed at this term, also on the report of said commissioners, filed at the May term, 1877, and on the affidavit of Edward A. Bennett and William A. Bradford referred to in said last named report, and the order made thereon; and was argued by counsel. Upon consideration whereof, the court is of opinion to, and doth accordingly, overrule the exceptions of the purchasers, Bradford, Bennett and Burdett, to the confirmation of the sale made to them as aforesaid, and doth dismiss the petition of said purchasers at their costs. It is therefore adjudged, ordered and decreed, that the sale made by commissioners William H. Hogeman and Edward B. Knight to William A.
The petition of the said purchasers, Bradford, Bennett and Burdett, referred to in the decree last above, is as follows, viz :
“To the Hon. Joseph Smith, Judge of this eourt:
Tour petitions respectfully represent, that at a judicial sale, had in the above entitled cause on the oth day of August, 1874, they became the purchasers of a tract of three thousand eight hundred and eighty-one acres of land, the property of Allen M. Smith, for the price of $13,040.16 ; that they paid the cash installment of $2,608.03; and that they executed their three bonds, with Henry S. "Walker as security, each for the sum of $3,477.37, with interest from date, payable respectively in six, twelve and eighteen months. Shortly after the sale the case was taken to the Court of Appeals by one of the creditors of the said Allen M. Smith, and has been recently decided, and the cause remanded back to this court for further proceedings. The sale has never been confirmed, and, as your petitioners allege, it would be inequitable, unjust and oppressive now to confirm the same for the following reasons :
“1st. Because since the sale your petitioners have ascertained from the former owner of the land, the defendant Smith, that the title of two hundred and fifty acres, a*758 portion of the land sold to them as aforesaid, is defective and bad. See tbe affidavit of Allen M. Smith, filed in caus6j ¡n connection with his exceptions to the commissioners> report, and now made part of this petition, and marked exhibit “A.”
“2d. Your petitioners purchased the property for the purpose of speculation and re-sale. They have been deprived of the possession of the same for almost three years, and have thus been prevented from offeringthe same to purchasers. In the meantime there has been a steady shrinkage in the value of real estate in the United States and particularly in the Kanawha valley. Meanwhile the interest, some seventeen per cent., on the purchase money has accrued, and all of the deferred installments have matured and become due, while your petitioners have been deprived of the possession and the title to the property.
“3d. During the period, that has elapsed since the sale, the defendant, Smith, has been busily engaged in despoiling the land, sold to your petitioners as aforesaid, partly by himself directly and partly through others; among others W. L. Childers, and Roman Pickens have cut two hundred and nine thousand nine hundred and thirty-six tight barrel staves ; one - Kidd, by the same authority, has cut one thousand walnut logs; one - Bell has cut and shipped one barge load of poplar ¡ríanle containing two hundred thousand feet, besides parts of three or four other barges laden with poplar plank, quantity unknown. By like authority the said Childers has cut seventy thousand tight barrel staves. The defendant, Smith, as your petitioners believe and charge, has cut some four hundred thousand tight barrel staves from said land.
“4th. Your petitioners have been informed by the defendant, Smith, that he has sold all the oak and walnut timber now remaining on the land, with permission to the purchasers to remove the same; in fact he exhibited the written contract for the oak timber to your petitioners.*759 They are informed and charge, that the lis penden ol this suit has never been recorded, and that the judgments, which, this suit was brought to enforce, have never been duly and legally docketed; and they are advised, that these contracts so made by the defendant, Smith, present a serious impediment to their enjoyment of the property, so purchased by them as aforesaid. Your petitioners also allege, that the chief value of said tract of land, and the chief inducement to them to purchase the same, was the timber situate upon the said tract at the time of the sale.
“Your petitioners are advised, that the difficulty about the confirmation of the sale was occasioned by the failure on the part of the creditors of the said Smith to prepare and enter proper decrees in this cause ; and that the destruction of the timber, as herein detailed, and the contracts for the future removal of the timber were made by the defendant Smith himself; and, that therefore neither the creditors of the said Smith, nor the said Smith himself, are in position to insist on the confirmation of said sale. Your petitioners, therefore, pray, that they may be made parties defendant to this suit; that the sale aforesaid be vacated and set aside; that their bonds may be cancelled and delivered up; that the cash instalment heretofore paid by them may be returned, with interest. And they will ever pray, &o.
“W. A. Braixfokd,
“E. A. Bennett,
•“Jno. S. Burdett,
“By Counsel.”
The said petition is verified by the affidavits of said Bradford, Bennett and Burdett. The following is the affidavit of said Allen M. Smith, referred to in his exceptions, as I infer, and also referred to in said petition of said Bradford, Bennett and Burdett, as exhibit (A), viz:
“ State oe West Virginia,
“ Kanaioha County, ss. :
“ Allen M. Smith this day made oath before the undersigned, that on the 3d day of August, 1864, he came to
“ Affiant further states,- that Jolin S. Burdett was the highest bidder on said 3d of August; and that the affiant loft Charleston under the impression, from the conference aforesaid with John S. Burdett, and the stringency of the money market, that no sale of the property would take place.
“Affiant further states, that a few days after August 3d he again came to town, and saw John S. Burdett about the sale of the property. Affiant then expressed his surprise to Burdett that a sale had taken place, and that Burdett had become the purchaser. Burdett then apologized to affiant, and tried to excuse himself, on the ground that other parties (Bradford and Bennett) had become associated with him in the purchase of the property, and that he (Burdett) had, been unable to make good his promise to affiant.
“ Affiant on the same day called also on W. A. Bradford and Edward A. Bennett, and notified each and all of the purchasers, that he would object and protest against the confirmation of the sale, made under such circumstances.
“Affiant further states, that the title to certain parts of
“ A. M. SMITH.”
“.Subscribed and sworn to before me, a notary public in and for said county, this 12th November, 1874.
“ J. T. Brodt,
“ Notary Public.’'
The following is the demurrer and answer of the administrators of Allen M. Smith to the said petition of the purchasers, Bradford, Burdett and Bennett, viz :
“The administrators of A. M. Smith demur to the petition, filed in the cause by W. A. Bradford and others? purchasers of land at commissioners’ sales, for want of equity ; and not waiving-, answer and say, that in order to pay the taxes on the lands, purchased by the petitioners, and save the same from delinquency and forfeiture to the State for non-payment of taxes, their intestate did contract and sell timber from said lands. "What timber was sold from said lands by said A. M. Smith, was sold to W. L. Childers and R. Pickens for tight barrel stuff at $2.50 a thousand in the stump, from two to five miles from the river. They held the money for same, and still hold it, subject to order of court. He had to, and did, pay several hundred dollars taxes on this land, while the case was in the Court of f Appeals.
“ A. A. Kook,
“ W. L. Chillers,
“ J„ A. Smith,
“ As Adm’rs of A. M. Smith,
“ By Counsel
The foregoing answer does not appear to have been sworn to by any person.
The exceptions of the purchasers, Bradford, Bennett, and Burdett, to the said report of sale of said special commissioners appear to have been filed on the 25th day of May, 1877; and the grounds of said exceptions are stated in their said petition, which I infer, was filed
There is an affidavit in the cause of W. L. Childers, dated November, 12, 1874, in which said Childers states on oath, that he is well acquainted with the land sold in August, 1874, by Messrs. Hogeman and Knight, as commissioners, which is situated on the waters of Little Coal river, and that in his opinion the said land is worth $10.00 per acre ; that land of like charaetcr, as to coal, timber and location, on Little Coal river was purchased by James M. Gray of the Dunlaps at $10.00 per acre. This affidavit seems to have been made by the said Childers, at the same time said Allen M. Smith made his affidavit aforesaid, and was sworn to before the same officer. And I pursume, that it is one of the affidavits referred to in the exceptions of said Allen M. Smith to the said report of sale of special commissioners, Knight and Hogeman.
The foregoing embraces all the facts, orders, decrees and evidence appearing in the record, bearing on the propriety or impropriety of the circuit court overruling the exceptions of the purchasers of the said land to the said report of sale of the special commissioners, Knight and Hogeman, and confirming the sale, &c.
From and to the said decree of the circuit court of the county of Kanawha, rendered in this cause on the 20th day of December, 1877, the said purchasers William A. Bradford, Edward A. Bennett and John S. Burdett, have obtained from this Court an appeal with supersedeas; and it is now for us, in reviewing the cause, to ascertain and determine, whether there is error in the said decree, prejudicial to said purchasers, for which the same should be reversed.
The appellants, in their petition for the appeal and supersedeas, assign the following errors in said decree, to which the appeal and supersedeas has been awarded, viz:
“1. The bidding was had on the 5th day of August,
“2. During all this period petitioners have had no possession or control of the land. The land has greatly depreciated in value ; the object for which they purchased the land has lapsed.
“3. It has been ascertained since the bidding, that the' title to a portion of the land is defective. (See exceptions to commissioner’s report.)
“4. The land is chiefly valuable for its timber. Since the bidding the land has been denuded of its timber, and at a period when petitioners had no right to interfere, the sale not having been confirmed. The court therefore erred in overruling the exceptions to the report, in confirming the sale, and in ordering the collection of the purchase money. The court should have set aside the sale, or at least ordered an account to ascertain the extent of depreciation, the quantity of land hold by good title adversely 'to the proposers, the extent of the trespass upon the timber, and then abated the purchase money. It was manifestly unjust and inequitable, to throw the entire loss and depreciation upon petitioners, who had been guilty of no laches or default.”
As the 1st. 2d and 4th, assignments of error have some bearing upon each other, they will for the sake of brevity be considered together, so far as deemed material to the main, and in fact the only question involved in this appeal, viz.: Did the court err in overruling the exceptions of the appellants, filed to the report of sale of commissioners, Knight and Hogeman ?
In considering these assignments of error I think it advisable, to first recur to authorities and judicial decisions, bearing]’upon'the(subject of judicial sales, so far asdhey bear upon!, the questions, involved and presented by thcjrecordand! saidjassignmentsjof error.
Again, at page 7 §12, ho says : “In a legal sense the sale is made by the court itself in enforcement of itsi own orders and decrees, wherein is described the property to bo sold. The person, who conducts the same, is merely the instrument, or means, used by the court to bring about such executory agreement as the court chooses, if satisfied therewith, by final act of confirmation, which makes the court the vendor. Such sale is unlike a sheriff’s sale on ordinary common law, or statutory execution, which is ministerial, and not a judicial act; and in making which the law regards the officer, -and not the court, as the vendor.”
Mr. Borer also, at page 9, §13, says : “ "When an acceptable bidder is found, and agreement as to terms is attained, then the report thereof is made to the Court; and the Court confirms it, or not, at discretion. Before such confirmation the purchase' is so incomplete, that a loss by fire falls on the vendor or owner’, though it occur after the acceptance of the bidding and after the report of sale.”
He further says, at pages 55 and 56, §§122 and 124 : “ Confirmation is the judicial sanction of the court. Until then the bargain is incomplete. When made, it relates back to the time of sale, and 'supplies all de
“In the exercise of this discretion a proper regard is had to the intent of the parties and the stability of judicial sales. By sanctioning the sale the courts make it their own.”
There is a difference between such sales, and ordinary auction sales, and sales by private agreement. In the latter says Daniel in his Chancery Practico : “The contract is complete, when the agreement is signed ; but a different rule prevails in sales before a master. In such cases the purchaser is not considered as entitled to the benefit of his contract, till the master’s report of the purchaser’s bidding is absolutely confirmed.” Such is the rule whether the sale be by a master, commissioner, or other person or functionary authorized by the court to conduct the sale. The bargain is not ordinarily considered as complete, until the sale is confirmed, and the conveyance made.
Again, at page 57, §128 : “The matter of confirmation rests so peculiarly upon the wise discretion of the court, in view of all the surrounding facts and circumstances, to bo exercised in the interest of fairness, prudence and the right of all concerned, that it is difficult to come at an absolute legal rule on the subject, other than that of a sound legal discretion. Any mistake or misunderstanding between the persons conducting the sale and intended bidders, or parties in interest, -and any accident, fraud or other circumstances, by which
In the case of Taylor v. Cooper, 10 Leigh 317, Judge Tucker, who delivered the opinion of the court, at pages 318 and 319, says: “ I have had not the slighest doubt of the right of Cooper, the purchaser, to the rent in question. The principles of the court, according to the English practice, I take to be clearly these :
1. When there is a sale by the master, and the property appreciates by the accidental falling in of lives or other means, the court will only confirm the sale upon the terms of the purchasers making compensation, Dary v. Barler, 2 Atk. 490; Blount v. Blount, 3 Atk. 638, and in doing this, it but acts within the scope of its rights and powers; for the sale is not conclusive, until confirmed ; and justice to the owner of the estate demands, that when there has been a material appreciation before confirmation, a re-sale should be directed, unless the purchaser will make compensation.
2. When after the sale and before confirmation (as in the cases of Ex parte Miner, 11 Ves. Jr. 559, and Heywood v. Covington’s heirs, 4 Leigh 373) the property is destroyed, or materially injured, by flood or fire, the loss must fall on the vendor; for as, in the case of appreciation, the vendor will be charged with compensation, so, in the case of depreciation, by destruction of part of the estate, he has a fair claim to deduction. Until the sale is confirmed, he is considered in England as having no fixed interest in the subject of purchase. 11 Ves. 559. Before it is confirmed, he is always liable then to have the biddings opened; and therefore non constat, that h
3. But thirdly, when the sale is confirmed, that is, when both contracting parties (the purchaser and the court) concur in ratifying the inchoate purchase, the confirmation relates back to the sale, and the purchaser is entitled to everything, he could have been entitled to, if confirmation and conveyance of title had been contemporaneous with the sale.”
See also Attorney-General v. Day, 1 Ves. 218; Trugg v. Fifield, 13 Ves., Jr., 517.
This Court held in the case of Kable v. Mitchell et al., 9 W. Va., 492, that in sales made by commissioners under decree and orders of a court of equity, the purchasers who have bid off the property, and paid their deposits in good faith, are considered as having inchoate rights, which entitle them to a hearing upon the question, whether the sale shall be set aside. And if the court errs by setting aside the sale improperly, they have the right to carry the question by appeal to a higher tribunal; that a sale by a commissioner, made under a decree of a court of equity, is not an absolute sale in the State of West Virginia, and does not become absolute, until it is confirmed by the court; that the court may, in the exercise of a sound discretion, either affirm or set aside the sale, when from the facts, evidences and circumstances before it, it appears clearly, that the. sale was made at. a greately inadequate price; and the court may solve the question upon affidavits or depositions in connection with the fact, that a greatly larger price is offered to the court for the land, and secured or offered to be secured; or it may set the sale aside upon any evidence, or fact, or facts before it, which clearly shows, that the land sold at a greately inadequate price. That there is no inflexible rule in this
But this discretion is not an arbitrary one, it shall be correctly exercised, and is liable to review by an Appellate Court in a proper case. That the discretion, which the court may exercise in such cases, will not authorize it to set aside the sale without sufficient cause ; and greatly inadequate price is, among other things, a sufficient cause; and that when the circuit court has disapproved and set aside such sale, made by its own commissioners, the Appellate Court should not disturb the action of the circuit court, unless it plainly appears, that there is error to the prejudice of the appellant.
In this case the court declined to confirm the sale, and directed the property to be re-offered; and the purchaser appealed.
In the case of Jackson et ux. v. Edwards et al., 7 Paige 386, it was held, that “the court will not give a purchaser at a master’s sale the benefit of his purchase, when he neglects to comply with the terms of sale within a reasonable time, if a rc-sale is deemed more beneficial to the parties. So the court will not compel him to take
In this case Chancellor Walworth in. delivering the opinion of the court said: “ As this court will not give a purchaser at a master’s sale the benefit of his purchase, when he has neglected to comply with the terms of sale within a reasonable time, if a re-sale of the property is deemed more beneficial to the parties interested in the proceeds of the sale; so neither will it compel him to take the title, when by the fault of the parties, thus intended, and without any captious objections to the title on his part, the completion of the sale has been delayed so long, that he'cannot have the benefit of his purchase substantially, as if the sale had been completed and the title given at the time contemplated by the terms of sale. In this case there was a valid objection to the title, which was not removed until a long time after the sale; and no attempt was made to .remove it, until the property had depreciated in value, so that the purchasers must now be great losers, if they are compelled 'to take the property at the price, for which it was sold. The effect of compelling purchasers to take a title upon a master’s sale, under such -circumstances, must necessarily tend to deter bidders from attending and purchasing property under the decrees of this court. The several orders appealed from are therefore right; not for the reason, that it is now impossible to make a good title, but because the purchasers ought not to be required to take even a good title after such a delay, as had occurred at the time these orders were made, when the purchasers could not have the substantial benefit of their respective purchases.”
In this ease, it seems, the sales were made in 1837 as and for good titles. The purchasers objected to the title, which they would acquire under the master’s deed
The Vice Chancellor decided, that the title to the premises would be perfect under the master’s deeds and the additional deeds of Mrs. Edwards, except as to the inchoate rights of dower of Maria Jackson, one of the complainants, and of the infant wife of David S. Jackson, one of the defendants; but that their rights to demur in the premises, in case they survived their husbands, could not be barred by a sale under a decree in partition, to which they were parties. He therefore refused to compel the purchasers to complete their purchases. This decree was appealed from'; and Chancellor Walworth affirmed the decree of the Vice “Chancellor, not for the reasons assigned by the Vice Chancellor, but for the reasons stated in that part of his opinion above quoted.
In the case of Threlkelds v. Campbell, 2 Gratt. 198, it was held, that a purchaser of land at a judicial sale can only obtain relief for defects in the title, or incumbrances on the property, by resisting the confirmation of the sale by the court, upon the return of the commissioners, report. And it is not competent for a court of equity, to enjoin a judgment, obtained against him for the purchase money, on the ground of defect of title to the property at the time of the purchase. Young’s adm’r et al. v. McClung et al., 9 Gratt. 336, 358; Daniel et al. v. Leitoh, 13 Gratt. 195, 212. 213.
But in the case of Watson v. Hoy et al., 28 Gratt. 698, it was held, that '‘though it is true, that in Virginia it would seem to be the general rule, that objections by purchasers to judicial sales for defect of title must be made, before the sale is confirmed by the court, and that objections afterwards came too late, yet the rule does not apply to the eq'uity of a purchaser, arising from after-discovered mistake, fraud or other like matter. And there having been a mutual mistake, as to the quantity
As before stated, the decree of sale in the case at bar was rendered on the 11th day of November, 1869; the sale of the land was not made by the special commissioners until the 5th day of August, 1874, nearly five years after the date of said decree of sale.
At the time the appellants purchased the land, the time, within which an appeal could be lawfully taken from the decree oí sale, was within three monihs of being expired ; and for this reason there was some ground at least for bidders at the sale to regard it as probable, though not certain, that no appeal with supersedeas would be asked or taken from the decree of sale. But very soon after the sale was made, a part of the judgment lien creditors of said Smith, who were parties to the suit applied for and obtained from this court an appeal and supersedeas from and to said decree of sale, and other orders made in said cause. And on the 25th day ot November, 1874, said Smith, then owner of the land which was decreed to be sold- to pay his debts, being dissatisfied with the sale, filed written exceptions to the same, one of which was, that the land sold for an inadequate price, that it was worth at the sale $10.00 per acre ; and another, that the title to eeitain parts of the tract of land sold was defective, and that, there was a cloud on the title of a part of the land sold, and in support of these exceptions filed his affidavit and that of W. L. Childers, wffiich arc dated the 12th dav of November 1874,respectively, and have hereinbefore been referred to.
The report of sale was presented to the circuit court on the 12th day of December, 1874; and the court then and there, as stated in its order of that date, determined,
As before stated, this court rendered itsdecision in the cause on the 1st day of May, 1877, at Wheeling; and on the 25th day of the same month and year the appellants filed their said exceptions to said sale, and their said petition, sworn to, to the court to set aside said report of sale, and the sale therein reported. It appears, and in fact is admitted, in effect, that between the time the land was so sold, and the decision of the cause by this court and the filing of said petition, the land had depreciated greatly in value, and was not worth by a largc/amount, what it was, when sold ; that during the whole time the land, or nearly all of it remained in the possession and use of said Smith, and those claiming under him; and that said Smith by his vendees under him had cut, destroyed and converted a considerable, amount of saleable growing timber upon said land, to the great injury of said land in value, which fact'was reported to the court by said special commissioners, supported by affidavits; and the court by its order of the 19th day of May, 1877, made the order of injunction in the cause hereinbefore referred to.
It further appears, that some time after rhe death of said Smith, and on the 20th day of May, 1877, his administrators and heirs then formally withdrew said exceptions of said Allen M. Smith, deceased, rendered in said report of sale. It does not appear, that said Smi th^ deceased, before his death offered, or wished, to withdraw his said exceptions to said sale.
W". L. Childers one of the administrators, I infer from what appears in the record, is the same person who bad sworn on the 12th day of November, 1874, that in his opinion the land sold was worth. $10.00 per acre, and also one of the persons, who was engaged in cutting and con
Thus it is seen in this ease,that the owner, Smith objected to said sale and the confirmation thereof by the court and that through the action of a part of the creditors, who were parties to the suit, in obtaining and prosecuting said appeal and supersededs, action by said circuit court upon said report of sale in every respect was obstructed and prevented, notwithstanding the appellants have paid said special commissioners a large sum of their money down payment on their purchase, and had in every other respect complied with the terms of said sale, and were not in default, and 'were in no manner chargeable with the extraordinary delay in final action upon said report of sale by the court.
Under these circumstances and facts, was' it just, and in accordance with the principles of equity and of good conscience, for the circuit court to overrule the exceptions of the appellants to said sale and the report thereof, and to dismiss their said petition ? Upon reason, principle, and the authorities on the subject, as I understand them, I humbly think not. It was over three years from the day of sale, before the court confirmed it, or acted in any manner on said report; and, as we have seen, no part of the delay was caused or produced by the appellants, or either of them.
In the case of Jackson v. Edwards, 7 Paige, before cited, so far as I can see from the report, not more than a year’s delay was caused, and in the meantime the property largely depreciated in value, as here; and yet it was held in that case, as we have seen, that the purchasers by
Ordinarily it is fair to presume, that all persons, who hid at sales of commissioners under decrees of courts of equity, do so with the tacit understanding, at least, that the sale ~vill be reported and approved or disapproved within a reasonable time, and that the highest bidder will not be kept in doubt, as to the result, and out of the use of money, he pays to the conitnissioners at the sale on his bid, for an unreasonable length of time thereafter, ~vhien he is not in dethult, and is guilty of no ladies or fraud or the like, and has not acquiesced in the unreasonable delay.
In view of all the facts and circumstances appearing-in this case, and the principles of equity, applicable and governing in such cases, as I understand them, it seems to me, that the circuit court of the county of Kanawha erred in its said decree of the 20th day ofDecembor, 1877, in not sustaining the exceptions of the appellants t( said report of sale of special commissioners, Edward B. Knight and William II. Hogeman, of the tract of land, in said report of sale and decree mentioned, and in dismissing the said petition of the appellants, and in approving and confirming the sale and the report thereof.
The court should have set aside said sale and the ve
I deem it unnecessary to consider th.e appellants’ said third assignment of error, because under and according to the views I have taken and expressed on the other questions, involved in the cause, and hereinbefore considered, this assignment of error is immaterial.
'For the foregoing reasons the said decree of the circuit court of Kanawha county, rendered in this cause on the 20th day ot December, 1877, must be reversed ; and the appellants recover against the administrators of Allen M. Smith, deceased, their costs about the prosecution of their appeal and supersedeas to said decree in this court expended. And this court proceeding to render such decree, as the said circuit court should have rendered, it is adjudged, ordered and decreed, that the report of sale of special commissioners, William H. Iiogeman and Edward B. Knight, heretofore returned and filed in this cause, showing that on the 5th day of August, 1874, they sold, pursuant to decree entered in this cause, to William A. Bradford, Edward A Bennett and John S. Burdett a tract of three thousand eight hundred and eight-one acres, as the property of Allen M. Smith, since deceased, described in said report, at the price of $3.36 per acre, or $13,040.16 for said tract of land, and the sale of said land, in the said report of sale mentioned, be, and the same is hereby disapproved and set aside ; and the cause is remanded to the said circuit court, with instructions to that court to cause the cash payment, made by the said W. A. Bradford, Edward A. Bennett and John S. Burdett, of $2,608.03 in said report of sale mentioned, with proper interest thereon from the
JUDGMENT BE VERSED.