Makemson v. Braun

100 Ky. 88 | Ky. Ct. App. | 1896

JUDGE GUFFY

delivered the opinion oe the court.

J. W. Makemson assignee of Jas. J. Braun, Jr., brought suit in the Pendleton Circuit Court for the settlement of the estate of Braun, assigned to him for the benefit of creditors, and in said suit a judgment was entered directing the master commissioner to sell a certain tract of land.

At the October term, 1894, of the said court the commissioner made report of sale. The report shows that on the 3d day of September, 1894, he offered the land for sale, and that J. J. Braun bid the sum of $8,100 for the entire tract of 180 1-2 acres of land, also to include island and bed of stream to the main channel of South Licking river, and no person offering to pay a greater sum, and he being the highest and best bidder, his bid was accepted, and he refused to execute bonds for said purchase money, and the commissioner re-advertised the property for sale October 1,1894, at which time the same was purchased by S. T. Ewing at his bid of $7,600, he being the highest and best bidder,' and bonds were executed for the purchase money as required by the judgment. On the 19th day of October, 1894, the report of sale was confirmed, the report having been filed the 15th.

At the January term, 1895, of the said court, on the 14th. day of January a rule was issued against the appellee, on motion of appellant, to show cause why he should not be required to pay the difference in the price bid at the first sale and the price brought at the second sale. On the 25th of the same month and term of court appellee demurred to the rule, and on the 28th day of January a response was filed and the demurrer was sustained and rule discharged, and from that judgment this appeal is prosecuted.

The substance of the response is that appellee bid for the land in good faith, believing he could execute the required bonds and offered the best security he' could at the time of sale and afterwards. It is a well-settled law that a bidder who fails to comply with an accepted bid may, by proper proceedings, be required to pay the damage resulting from such failure, which would include the difference between his bid, if any, and that realized on the final sale, if the property sold for less at the final sale; but in this case it appears that the commissioner elected to treat appellee’s bid or purchase as a nullity, and proceeded to readvertise and sell again, and reported all his acts to court, and appellant took no steps to compel appellee to comply with his purchase, but procured, or at least allowed, without objection, the last sale to be confirmed, thus investing the second purchaser with a complete title, and making it impossible for appellee to obtain the land, and in fact made no complaint until the next succeeding term of the court.

It seems to us that the rule was obtained too late, and the judgment of the court below was, under the facts in this case, right and proper, and that judgment is affirmed.