Short v. Ramsey

18 Tex. 397 | Tex. | 1857

Wheeler, J.

The only question which it is material to consider is, whether the Court erred in the charge, to the effect, that the neglect of the administrator to re-advertise and sell the property, from January, 1845, when the first sale was ap. proved by the Probate Court, and the defendant was in default in not complying with the terms of the sale, until the October following, released the defendant from his liability to the estate for the deficiency in the price for which the last sale was effected, below the sum bid by him upon the first sale.

We are of opinion that there is no error in the charge. By reference to Article 1175 of the Digest, it will be seen that when the first purchaser fails to comply with the terms of the sale, the administrator has only to re-advertise and proceed again to sell the property ; and as a new order of sale is not required, there is nothing to prevent his doing this immediately. His duties, as prescribed in the following Section and various other provisions of the law, and the nature of his trust require that he shall proceed with all convenient promptness and dispatch. The interest of the estate and all concerned demand it. If it be for the renting of lands or the hiring of slaves, it is obvious that such delay would not only be very injurious to the estate, but might be made to operate very oppressively upon the bidder. There may be less reason for prompt action in case of the sale of lands. But even lands and property of any description may depreciate in value, or other causes may conspire to prevent it from bringing its value at a second sale, especially if it be long delayed.

Justice to the first purchaser as well as the interests of the estate demand, that the re-sale he effected at as early a period as conveniently may be. It ought to be done within a reasonable time, or the purchaser be held discharged of his liability to make up the deficiency in price. What shall be deemed a reasonable time must depend upon the circumstances of the particular case. In all cases the administrator should proceed to re-advertise and sell as soon as he conveniently can, after the default of the bidder at the first sale has been fully ascertained. Without attempting to fix any certain period as applicable to all cases, -this general rule should certrinly be observed. And we concur in opinion with the Court below, that a delay from January to October, unexplained, is too great a delay, and such as ought to discharge the defendant from liability to the estate for the deficiency in price. We are of opinion, therefore, that there is no error in the judgment, and it is affirmed.

Judgment affirmed.