94 S.W.2d 350 | Ky. Ct. App. | 1936
Reversing.
This is an appeal from an order of the Montgomery circuit court sustaining exceptions to the sale of a certain tract of land in a proceeding under section 490 of the Civil Code of Practice. The appellant was the purchaser at the sale. He paid $605 for the property. In substance, the exceptions taken to the commissioner's report of the sale are: (1) That the price bid was inadequate; (2) that the purchaser publicly *197 and falsely stated that there were infant children who owned part of the property and that there was a lot of taxes on it which the purchaser would have to pay; (3) that the purchaser solicited prospective bidders not to bid; and (4) that plaintiffs had received an offer of $700 for the property. No bond was filed in connection with this alleged new bid. By amended exceptions, it was set out that one of the parties to the suit had died, leaving two children, and it was asked that the sale be set aside and a new sale ordered after these children were made parties. The chancellor sustained the exceptions and ordered a resale. The only question before us is whether or not the order sustaining the exceptions was erroneous. We will consider the exceptions in the order stated.
The first objection to the sale was that the property sold for only about one-third of its real value. The master commissioner appointed two appraisers to examine the property, and they appraised its value at $1,750. Subsequently the commissioner ascertained that it was unnecessary to have an appraisement for a sale made pursuant to section 490 of the Civil Code of Practice (Hosch v. Hosch's Ex'rs,
It is argued, however, that, where the inadequacy is accompanied by circumstances, though only slight and insufficient in themselves, which tend to cause it, or where it is attended by apparent unfairness or impropriety or oppression on the part of those connected with the sale, the sale will be set aside. This is undoubtedly the law. Kentucky Joint Land Bank v. Fitzpatrick, supra. We must determine, therefore, whether or not the proof of the accompanying circumstances complained of in the remaining exceptions was sufficient to call for an application of this principle.
The second ground listed above, namely, that the purchaser publicly stated that there were infant children who owned part of the property and that there was a lot of taxes on it which the purchaser would have to pay, was not proven. The master commissioner, who made the sale, and who is a reputable lawyer, testified that he heard no such statement made. The purchaser denies saying anything to anybody in an effort to keep him from bidding on the land. Obviously, there was no proof on which the court could act as to this exception, even if it should be assumed that the statement alleged to have been made was untrue. The record before us indicates that the statement was in fact true.
The third ground of exception was that the purchaser *199 solicited prospective bidders not to bid. It is sought to establish this ground by the testimony of the same disappointed bidder who now says that he would give $800 for the property. The testimony of this witness is considerably shaken by his admitted hostility toward the appellant, as well as his evident desire himself to purchase the property. Furthermore, this witness testified that the purchaser requested him to quit bidding in the presence of two other persons, yet plaintiffs do not introduce these other persons nor make any explanation as to their absence. The appellant denies asking any one not to bid. We do not think the proof, under the circumstances, justifies a conclusion that he did.
The next exception is the statement of an advance bid of $700. This advance bid was made by the would be purchaser, who testified at the hearing on behalf of the plaintiffs. There is no proof of such inadequacy of the bid to the proven value of the property nor any such appealing equity presented as to authorize the court to set aside this sale in order to secure $95 or $195, less intervening expenses, for the property. Koontz v. Butler,
Finally, it asserted that one of the parties to the suit had died, leaving two children, and that the sale should be set aside and these children made parties before a resale. The trouble with this contention is that there was no complaint by the persons affected, and, in addition, the purchaser filed a response to this exception, setting out that he had purchased the interest of the particular children involved, all of whom were adults. This is not disputed.
It is undoubtedly the policy of the law to sustain judicial sales, in the absence of some potent objection, in order that all persons may be encouraged to bid at such sales and the property sold be not sacrificed. Crawley v. Manion,
Judgment reversed for proceedings consistent herewith.