Oswald v. Johnson
78 S.E. 333
Ga.
1913
Check Treatment
Evans, P. J.

(Aftеr stating the foregoing facts.) The controlling point arises out of exceptions to the rulings of the court refusing to consider objections to the fairness 'аnd validity of the sale of the property sought to be partitioned, and to its confirmation by the court. When the exceptors offered their written objections to the validity of the sale, an oral demurrer thereto was sustained, on the ground that the ‍‌‌​‌‌‌​‌‌​​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌‌​‍objections to the sale and the motion to withhold' confirmatiоn were presented too late, and that the sale could not be set aside in this proceeding. This brings up the question whether it is permissible, under the statute for thе partition of land, to contest in that proceeding the validity of the sale made under the order of the court; or must a dissatisfied co-tenant go into еquity for that purpose ?

*63The code provides that where land is held in common, one or more of the co-owners, upon giving notice of their intention, may apply to the superior court for the appointment of partitioners, who shall divide the land according to the interest of the respectivе owners therein. Whenever application is made and either of the parties in interest shall make it satisfactorily appear to the court thаt a fair and equitable division of the land can not be made by metes and bounds, the court shall order a sale of the land, tod shall appoint three persons to conduct it under such regulations and upon such just and. equitable terms as the court'may prescribe, which shall take place on the first Tuesday of the month, at the place of public sales of the county in which the land is situated, after an advertisement of such sale, in some public gazette of this State, once a week for four weeks. After the sale of the land, the commissioners conducting it shall return their proceedings to the ■court, and the court shall order the proceeds of the sale to be divided among the several claimants ratably in proportion to their respective ‍‌‌​‌‌‌​‌‌​​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌‌​‍interests, aftеr deducting the expenses of the proceedings. Upon the sale of the land, the parties in interest shall execute a title to the purchaser; аnd if any fail or refuse to do so, the commissioners, or a majority of them, shall execute the deed of conveyance, which deed will be as valid and binding in lаw and equity as if made by the parties themselves. In any extraordinary case not covered by the code sections, the court may so frame its proceeding and order as to meet the exigency of the case, without forcing the parties into equity. At the term of the court at which the applicatiоn is made or at the term next after the partitioners have made their return, any of the interested parties may file objections to the right of the apрlicant to have partition, or to the return of the partitioners, and may by way of defense show toy .good matter in bar of the partition, or may show that thе demandant has not title to so much as is allowed and awarded to him by the partitioners, or to any part of the land; and an issue made by such objections shall be tried by a jury. Civil Code, §§ 5358-5368.

The statute. evinces a legislative purpose to afford an effective mode for the partition of land, without forcing the pаrties into equity. ‍‌‌​‌‌‌​‌‌​​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌‌​‍Power is reserved to the court, in ordering a sale of the land, to prescribe reasonable regulations and equitable and just *64terms in the cоnduct of the sale. These features of the statute,- as well as the general powers of the court over sales, which are -to be the basis of further аction in the same ‍‌‌​‌‌‌​‌‌​​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌‌​‍proceeding, indicate not only the power, but the propriety and necessity of the court’s confirmation of the sale before dividing out the proceeds amongst the interested parties.

It is argued that it is only where the decree authorizing a sale is interlocutory that confirmatiоn is necessary, and that the order directing a sale of the property for division of the proceeds is final in its nature. It is true thai it has been decided that whеre an application is made to the superior ‍‌‌​‌‌‌​‌‌​​​​‌‌‌​‌‌‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌‌​‌‌‌​​‌‌‌​‍court for the partition of land by sale, and the judge, after hearing the evidence, appоints commissioners, and orders them to sell the land, such judgment is so far final as to authorize the objecting party to bring the case to the Supreme Court for reviеw of that judgment. Lochrane v. Equitable Loan &c. Co., 122 Ga. 433 (50 S. E. 372). But that holding was put upon the peculiar provisions of the statute as affording a remedy for exception to such judgment, and nоt as dispensing with the necessity of confirmation of the sale. The power of the court to impose regulatory terms in the conduct of the sale, and the statutory requirement of a report of the persons conducting the sale as a precedent step to the division of the proceeds, sufficiеntly make it appear that the legislative intent was to require a confirmation of the sale. Indeed in this case the court expressly confirmed the sale in his order dividing the proceeds.

The objection urged against the sale was its unfairness and the gross inadequacy of the price at which it was sold by the cоmmissioners. The plaintiffs in error are minors, who have a guardian, and owned a three-fortieths (3/40) interest in the land. The purchaser at the sale and his wife owned ninеty-three one hundred and twentieths (93/120) of the land. It is alleged, that the guardian was inadvertently misled, by a conversation he had with the presiding judge, into believing that he would be given notice when the sale would take place; that the land was worth $8,000, and the purchaser at the commissioners’ sale had offered to buy the interеst of plaintiffs in error on the basis that the land was worth $5,000; that the purchaser bid it off for the sum of $2,000, which was the only bid made for the land; that the guardian of the plaintiffs in errоr is a man of means, and is their uncle, and he *65would have bid on the land if he had been informed of the sale; that although the plaintiffs in error had a guardian, the court appointed as their guardian ad litem a total stranger, who, notwithstanding’he accepted the trust, did nothing to notify the plaintiffs in error or their guardian of the оrder for the sale of the land or the time it would be sold. Inadequacy of price is not per se sufficient to set aside a sale, unless it is so gross as, when cоmbined with other circumstances, to amount to fraud; but if it be great, it is of itself a strong .circumstance to evidence fraud, and this is true where it is attended by any other fаct showing the transaction tó be unfair, or unjust, or against good conscience. Parker v. Glenn, 72 Ga. 637. This is the rule laid down by this court with respect to an execution sale, which does not require confirmation. How much greater then is the force of that rule when applied to a sale under an interlocutory decree. On demurrer we have to assume the truth of the averments of fact contained in the objections. According to these averments the land was sold at one fourth of its mаrket value; the purchaser was a cotenant owning more than two thirds of the land; the plaintiffs in error were inadvertently misled into believing that they would recеive notice of the sale; and their guardian ad litem, the officer of the court appointed to look after their interests, wholly failed to inform them оf the order directing the sale or the time when it would occur. These facts are such as should appeal to the court to refuse to confirm a sale which works injustice to the plaintiffs in error, and which does not deprive the purchaser of any equity or right he has in the land. Hnder the circumstances we think the court erred in dis^ missing, the objections to the confirmation of the sale.

Judgment reversed.

All the Justices concur.