11 Ky. Op. 938 | Ky. Ct. App. | 1883
Opinion by
The appellant, John H. Morton, bid $700 for the land, which was the highest bid, but the commissioner refused to accept his bid unless he would give the bond with good security required by the judgment of sale, Decause the commissioner knew Morton to be insolvent. Fiad the eommissioner any power to annex such a condition to the acceptance of -a bid? We think not. He was bound to accept all bids -as made and knock the property off to the highest and best bidder and then if the purchaser failed to give bond and security as required by the judgment within a reasonable time it would have been the duty of the commissioner to advertise and sell the property -at some future time, the derelict purchaser being sub
Fair competition, on equal terms to all, would be greatly disturbed by such interferences by the commissioner, and purchasers confined to those who would, upon such an abrupt demand, be able to show their ability to comply with their bids. The right to bid and have the bid accepted until it is exceeded by a higher bid does not depend upon what the commissioners may think or know about the financial condition of any of the bidders. The exercise of his judgment and discretion on that subject should be postponed to the time of accepting the bond and security offered, and then he should give the purchaser a reasonable time within which to produce the sureties and a fair opportunity to execute his bond after the sale shall have been made.
Wherefore the judgment confirming the sale is reversed and cause remanded for further proceedings. As to the merits of the controversy as exhibited by the old records we can not look into them unless brought before us, through the circuit court, by bill of review or suit for a new trial or to vacate or modify the judgment, this court having affirmed it, and all matters embraced by the record being res adjudicada.