after stating the case, delivered the opinion of the court.
The question in this case is whether the master’s sale shall stand. It may be stated generally that there is a measure of discretion in a court of equity, both as to the manner and conditions of such a sale, as well as to ordering or refusing a resale. The chancellor will always make such provisions' for notice and other conditions as will in his judgment best protect the rights of all interested, and make the sale most profitable to all; and after a sale has once been made, he will, certainly before confirmation, see that no wrong has been accomplished in and by the manner in which it was conducted. Yet the purpose of the law is that the sale shall be final; and to insure reliance upon such sales, and induce biddings, it is essential, that no sale be set aside for trifling reasons, or on account of matters which ought to have been attended to by the complaining party prior thereto. And in this respect regard may.properly be had to all .that has transpired before, for the conduct of the parties, their acts and omissions, may largely interpret their action at the time of the sale. In order,' therefore, to understand. fully the merits of these present appeals we must notice the' course of the litigation and the conduct of the parties prior to the sale.
In 1883 the Pewabic Mining Company ceased to exist; its property then belonged to the different stockholders as tenants in common. They could not agree among themselves.' The minority appealed to the courts, and there the litigation was carried on for years; the minority insisting .upon a. gale, the majority upon the transfer of the property to a new corporation. At the end of six years the controversy was finally determined by this court; and in January, 1890, a decree of the Circuit Court directing a sale was affirmed. During these years each party was fully aware of. the purpose and contention of the other, and, therefore, had ample time to prepare for whatever might be the outcome of the litigation. In January, 1890, as stated, the final decision was announced; at' that time each party knew that a sale was to be had, and
It is insisted by defendant that the plaintiffs- were acting in the interest of the Quincy Mining Company, a corporation owning adjoining and rival mining property; that solely in its interest, and not for the benefit of the stockholders in the Pewabic Mining Company, they carried on this litigation, secured the sale, bought at it, and, in final consummation of the wrong to their coowners, have since their purchase conveyed the property to the' Quincy Mining Company. There is. a counter-charge by the appellees that the majority of the stockholders who sought to convey the property to the new corporation, and who have been practically the adverse party in this litigation and who may hereafter be considered as described by the term defendant, were acting in the interest of the Franklin Mining Company, another corporation also owning property adjacent to the Pewabic mine. We are inclined to'think there is truth in each allegation, and that it is not difficult to read between the lines that the. minority of the stockholders were interested in the Quincy and the majority in the Franklin Company, and that these respective corporations were seeking to obtain possession and control of the Pewabic. But there was no wrong or fraud in this, and no deception. Each party evidently knew the interests and
It is also contended that the sale was made at. a time when a severe financial condition existed fn the country, especially affecting mining stocks and mining property. But the sale had once been postponed on this ground at defendant’s- instance, the affidavits as-to such depression were met by counter-affidavits on the part of the .plaintiffs, and it is a, doubtful question, under those affidavits, whether such depression did in fact exist. Even if it were clear that it did, that would not necessarily be a reason for further' postponement. There comes a time in the history of a litigation like this when, though the times may be depressed, there must be a'sale. The rights of the one party are to be respected as well as those of the other; and it does not always lie in the mouth of - one who, by strenuous and protracted resistance, has delayed for years a sale, to claim still further, delay'on account of the then depressed financial condition. A speedy end of litigation, ■ as speedy as is consistent with the rights of each party; is to be desired; and they who prolong litigation by appeal from court to court must not complain if sometimes they find themselves, at the end, under burdens which would not have rested upon them but for such delay. We think it must be affirmed that, so far as the general equitable considerations attending these ■ cases are concerned, they make in favor of the appellees, and that a court should not for any light or technical reason disturb a sale consummated at the end of seven years of litigation.
We pass, therefore, to some of the special matters presented. First,-it is claimed that under the terms of the decree the sale-was prematurely made. That decree directed “ that all the assets and property of the said Pewabic Mining Company be sold at public vendue, for cash, to the highest bidder:
Provided, however,
That if at such sale the -bid' for the aggregate of the property and assets of said company should not be in ■excess of fifty thousand dollars above the amount of the debts of said company existing at the time of the sale hereinafter
“ Fourth, that for the purpose of fixing the upshot price at the sale the amount of such indebtedness on said day is hereby found and determined by the court to have been the sum of $80,191.20; fifth, that the last-named sum, with interest thereon from the last-named date, plus $50,000, shall be the starting point for thé bidding at the sale; sixth, that the sale heretofore decreed in this cause do take place after six weeks’ notice thereof subsequent to the date of this order shall have been given by said master, who is hereby directed to postpone sale until after such notice and then to make said, sale; seventh, all questions of any of the parties with respect to their dealings with the indebtedness of said company or any part thereof are hereby expressly reserved.”
The contention of the appellees is, that the purpose of requiring an ascertainment of the debts prior to the sale was the fixing of an upset .price, in order that, if- no • bid be made in .^excess of $50,000 above the amount of the debts of said company, the arrangement made in 1884 by-the majority of the stockholders for the transfer of the property to the new company should be ■ carried into effect, and -that it was not contemplated that the sale should be absolutely postponed until after a final judicial determination of the amount of the several claims against the corporation—a matter which, by reason of possible appeals from the circuit to this court, might delay the sale for many years. They further insist that the conduct of the appellant showed a purpose to promote delay, and, therefore, that, even if a strict construction sustained appellant’s claim, the court was justified in modifying the mere order of procedure. They urge, that though all debts due at the time of the commencement of the suit, and when the life of the corporation was ended, were paid, the defendant caused to be presented a series of claims, for services of counsel and
With respect to this last matter it is sufficient to say that obviously the defendant was dilatory; and with reference to the construction!' of the decree, we think the appellees are right. It cannot be that the sale was intended to be the last act of this litigation, and that it must be delayed till every claim arising since the commencement of the suit had been passed to final judgment; for as the property remained in the hands of the appellant, new claims for care and services might arise as fast as old ones were determined; and, indeed, there were at the time of the sale no debts save those arising since the commencement of the suit. The purpose of the decree was a sale, provided such sale would produce more than the plan proposed by the majority of the stockholders; and it was enough, the debts due at the time having all. been paid, that a mere statement of the amount of the claims be presented, and upon that the upset price be fixed. It will also be noticed that the court for the purposes of the sale found and determined the amount of the indebtedness, and that ample provision was -made in the orders for the rights of all creditors, and the collection of all debts, and a fund was received from the sale large enough to satisfy all possible claims .— $710,000, instead of the $50,000 named in the resolution of the company in March, 1884. We think, therefore, this contention of the appellant must fail. ' ~
A second contention is, that the sale was made to complainants without leave given by the court to them to bid. But no leave was necessary. ’ The complainants were not the vendors. The English practice does ,not obtain in this country. A sale made by a special master under the directions of a court of chancery is not a sale made by either of
In
Blossom
v.
Railroad Company,
Nor is this a case where the complainants stood in any such fiduciary relations as forbade them to purchase or prevented even their acting for others in bidding. They had litigated with the defendant for years in establishing- the right to have that property sold; and when finally they had succeeded in getting a decree that it be sold, they did not then' assume a
Another matter complained of is that the sale was prematurely confirmed. It took place on-the 24th of January, 1891, and the report of sale was filed February 4. On the 7th of February an order nisi was entered, that, unless cause to the contrary was shown within eight days, the sale would be confirmed. On February 13 reasons why the sale should not be confirmed were filed by the defendant, and on the same day exceptions to the report of sale. On the 2d day of March, upon notice, the objections and. exceptions of the defendant were heard by the court and overruled, and the sale confirmed.
In support of this complaint reliance is placed on general equity rule number 83 : “ The master, as soon as his report is ready, shall return the same into the clerk’s office, and the day of the return shall be entered by the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto, and, if no exceptions are within that period filed by either party, the report shall stand confirmed on themext rule day after the month. is expired.” It is worthy of note, however, that exceptions were filed, were heard and determined b,y the court, and no objection was made by the appellant to the time of the hearing, or any suggestion of a right
to
longer time in which to. file exceptions. It would seem that if there were error in this respect, the appellant was not in a position to avail itself thereof. But there was no error. Buie 83 has no reference to a report by a master of a mere ministerial matter like a sale, but only to his report upon matters heard and determined by him. In
McMicken
v.
Perin,
The remaining objections made by the appellant can be more conveniently considered in connection with the appeal of Alfred A. Marcus. The first appearance of Marcus in this litigation was in this wise: The sale was made on the 24th of January, and at the village of Houghton, county of Houghton, and State of Michigan. The 24th was Saturday, and late in the evening of January 23 the master received this dispatch:
“ Boston, Mass., January 23, 1891.
“ To Peter White, special master:
“ Please. postpone' sale of Pewabic mine; just found out the sale on our Jewish Sabbath; never notified of sale until to-day.' We hold nearly three thousand shares. Our Jewish friends in London will buy the mine. There are other Jewish buyers who will not attend sale on Saturday; will most cheerfully pay all expenses for postponement; if not, please announce at sale ‘ we will protest against this legality.’
“ Alfred A. Marcus.”
On Monday, the 26th, he received the a llowing:
“ Boston, Mass., January 26, 1891. •
“ To Peter White, special master:
“You ignored my dispatch; sold the Pewabic mine. I protest against the sale, as you v#re bound to do all to get the highest price. I claim the right now to bid seven hundred twenty-one thousand dollars cash, being twenty thousand dollars more than bid at the illegal sale. I shall claim the mine, being the highest bidder, and protest against any transfer being made to any one except myself, and shall hold you personally responsible.
“ Alfred A. Marúus.”
' In his report of sale he gave copies of these dispatches, simply adding that the sender of the dispatches was wholly
Affirmed.