81 W. Va. 545 | W. Va. | 1918
The only question that requires investigation upon this -appeal is whether the title of a purchaser at a judicial sale •confirmed, is protected by section 8 of chapter 132 of the Code which says: “If a sale of property be made under a decree or order of a court and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby; but there may be restitution of the proceeds of sale to those entitled thereto”. Both the decree of sale and the decree of confirmation were reversed and annulled by this court upon a former appeal for reasons stated in the opinion reported in 92 S. E. 340. Acting upon the assumption that the reversal <of the cause because of the absence of the parties whose financial interests necessarily were impaired and prejudiced Iby proceedings had in their absence, the circuit court remanded the cause to rules for amendment by the introduction ©f the parties omitted, and though not expressly declaring that the Sitie acquired lapsed upon the reversal, it did by the order .complained of direct the commissioners who made the sale to "refund to the purchaser, now the appellant, the cash payment and redeliver the notes executed for the balance remaining innpaid.
Although upon a cursory inspection the statute seems to be expressed in general terms and contains no exceptions, it has frequently been interpreted not to include sales made pursuant to an order or decree which is ineffectual because not- binding upon persons as,to whom the court had no jurisdiction, and whose rights apparently and materially were prejudiced by such action. That certainly is the rule laid
The authors of the opinions in these eases embody in them and approve the quotation taken from Capehart v. Dowery, supra. But it is said this ease is not controlled by them for the reason that the sale was confirmed without exceptions to the report or decree of confirmation; and as tending to show the necessity therefor before the sale can be assailed as invalid the following excerpt from the opinion in the Capehart case is quoted: “ By the express provision of the statute a title acquired by a purchaser at a judicial sale shall not be affected by the reversal or setting aside of the decree or order under which the sale was made; but if there were reasons why the sale should not be confirmed and exceptions made to the reported sale and the confirmation thereof and these reasons show that the sale was improper and should not be confirmed, then the title of the purchaser would be affected by these facts; but if the sale is confirmed without exceptions to
What is said in an opinion must be interpreted and understood in the light furnished by an inspection of the facts of the particular case. In the Capehart case there was not raised any question of the lack of jurisdiction because of the absence of any person as a party interested in the property attached and sold. Such parties actually were present and contested the grounds stated in the affidavit upon which the attachment issued. Failing in this they did not attempt to show cause against the entry of the order of sale, except to the report of sale or object to its confirmation: but without protest, exception or objection permitted the orders to be consummated without further complaint. But as held and contended for by counsel upon the-former hearing the proceedings in this suit were erroneous in part because of the absence of parties vitally interested financially in the land involved and which was sold doubtless without their knowledge, certainly without their presence as parties to the cause.
Seeing no error we affirm the decree. Affirmed.