105 Kan. 148 | Kan. | 1919
A review of the rulings on two motions is sought herein, one of which asked that a sale of property by a receiver be completed and .confirmed, and another by an adverse party that the sale be set aside and the property resold.
It appears that the district court appointed Garland Biffie as receiver for the property of the Goodeagle Refining Company ; that he sold the refining plant to W. J. Hogue, a promoter of the People’s Oil Company, for' $57,000; and that the contract of sale was approved by the court. Hogue paid $53,000 of the purchase price, but the balance was not paid when due. Leslie J. Lyons was appointed by ánother court as receiver of the property of the People’s Oil Company, and Hogue, and about a week after the time fixed for final payment for the refining plant Lyons tendered $4,300 as final payment on the plant, but it was refused by Biffle, the receiver. Instead of accepting the tender and delivering possession of the property, Biffle applied to the court for an order to resell the property, alleging that the purchaser had made default in the payment of the purchase price, and also that prior to the purchase Hogue had entered into another contract, with C. A. Smith, a stockholder of' the refining company, who undertook to act for all the stockholders of the company, by which Hogue was to pay Smith $5,000 in cash and $1-9,000 in the stock of another company, and it was alleged that this contract constituted a part of the sale contract. Biffle further alleged that since the sale of the refinery to Hogue he had learned of other debts of the company, and therefore asked for a resale of the property in order to meet the additional indebtedness. In his averments Biffle contended that the contract of sale had been terminated by the default of Hogue, also that the contract between him and Smith was a part of the sale contract, and, further, that by the failure of Hogue to carry out the provisions of the Smith agreement he had forfeited his rights under the sale contract. On the other hand, Lyons, on behalf of the purchaser, claimed that there had been a substantial compliance with the terms of sale, as $53,000 of the price had been paid in good time, and had already been disbursed by the receiver, and, further, that the balance of $4,300 was tendered only about a week after it be
The first question presented is the right of the receiver to prosecute this appeal. The proceeding is only an incident in the case of Charles A. Smith et al. v. The Goodeagle Refining Company, in which Biffle was appointed the receiver. The action was not brought by or against the receiver. He had made a sale of property on the order and approval of the court, and is now resisting an order made by the same court directing him to complete the sale. As the order made did not affect him, either as to compensation or expenses of administration, and did not involve any personal interest of his, he had no right to complain of or to contest with the court the propriety or validity of its order. He is no more than an officer or arm of the court under whose authority he is acting. Cases are cited in which a receiver having the custody of property was sued by an intervening party charging wrongful action in the administration of the estate by the receiver, thereby making him an adversary party, and hence an appeal was allowed. (Felton v. Ackerman, 61 Fed. 225; Bosworth v. Terminal R’d Association; 174 U. S. 182.) In the present case there was no intervention of claimants or outside parties, and the receiver did not stand in the attitude of an adversary party, unless he can be called an adversary of the court under whose authority he was acting. It was his duty not to antagonize, but to carry
In Brown v. Howard, 106 Va. 262, it was held that a special commissioner appointed to sell land was a mere ministerial officer of the court, and that he could not appeal from an order setting aside a decree of the court to make a sale of property, which he was not permitted to do, and he undertook to appeal from that part of the decree relating to the sale; but it was held that he had no such interest as entitled him to appeal. (Green v. Harrison, 59 N. C. 253.) It has also been ruled that when a receiver applied for an order authorizing him to sell property to pay debts, which he had contracted in the administration of the estate, and the application was denied, he had no right to complain, as that was a matter resting in the discretion of the court. (In re Premier Cycle Mfg. Co., 70 Conn. 473. See, also, Sutton v. Weber, 100 Ill. App. 360; Polk v. Johnson, 35 Ind. App. 478; Foreman v. Defrees, Brace & Ritter, 120 Ill. App. 486; Smith v. Warrenfeltz, 116 Md. 116; 3 C. J. 653.)
No reason is seen why the parties affected by the order may not appeal if reason for complaint exists. In an examination of the record it would appear that if the appeal had been presented by one having an appealable interest, we must have held that there was no substantial error in the orders made by the court. The testimony tends to show that the so-called Smith contract was neCer completed nor approved and did not become a binding obligation, and further, that it never constituted a part of the contract of sale, nor does it appear that there was anything inequitable in the action of the court in refusing to declare a forfeiture because of the default of the purchaser for a few days in the payment of the small balance due after he had paid $53,000 of the purchase money. Especially is this true where it appears that the amount paid had never been restored nor tendered, but, on the other hand, had been disbursed by the receiver. It does not appear that the purchase price was inadequate, nor that any good grounds were shown for a refusal to confirm the sale.
Judgment affirmed.