Harman v. Copenhaven

• Decision Date: 13 April 1893
• Citation: 89 Va. 830,17 S.E. 482
• Parties: HARMAN. v. COPENHAVEN et al.
• Court: Virginia Supreme Court

17 S.E. 482

89 Va. 830

HARMAN.

v.COPENHAVEN et al.

Supreme Court of Appeals of Virginia.

April 13, 1893.

Judicial Sales—Confirmation —Setting Aside —Inadequacy of Price—Special Terms.

1. Where the report of a judicial sale was filed in the clerk's office before the regular March term, and should have been acted on at that term, or the August term following, had either of those terms been held, consent was not necessary to authorize the court to dispose of it at a special term thereafter held; Code, § 3062, providing that any civil cause may be tried at a special term which could lawfully have been tried, but was not tried, at the last preceding term that was or should have been held.

2. Code, § 3060, authorizes the judge of a circuit court, by an order or by a warrant directed to the clerk, to appoint a special term, and provides that the clerk shall inform the commonwealth's attorney and the sheriff of such appointment, post a copy of the warrant ou the front door of the courthouse, and issue all process to such special term. Held, on an issue as to whether a special term had been called in conformity with such statute, that where it was shown that it had been complied with, in respect to the posting of the warrant and order, the appellate court would presume that all of its provisions were duly complied with.

3. The provision that the clerk should inform the commonwealth's attorney and sheriff of the appointment of a special term is merely directory, and failure on his part to do so would not affect the validity of the proceedings had at such special term.

4. In Virginia mere inadequacy of price is not sufficient ground to set aside a judicial sale after confirmation; it being necessary to show, in addition thereto, that there was fraud, accident, or mistake, or some other special ground to warrant the rescission of a contract in pais.

Appeal from a decree of the circuit court of Smyth county, rendered September 2, 1891, dismissing the petition of Hezekiah Harman, appellant here, and praying that a judicial sale previously confirmed at a special term be set aside, which sale was made under a decree in the suit of McMullin v. McMullin's Adm'r et al., pending in said court. Opinion slates the case. Affirmed.

Blair & Dickinson, for appellant.

G. H. Fudge and G. W. Richardson, for appellees.

LEWIS, P. This is an appeal from a decree of the circuit court of Smyth county, refusing to set aside on the petition of the appellant, a judicial sale which had been previously confirmed at a special term. The case is substantially this: The appellant and one Copenhaven were cosureties on the bond of F. Alexander, administrator of Fayette McMullin, de ceased. The administrator made default, in consequence of "which a considerable liability was cast upon the sureties. To discharge in part this liability, there was a decree for the sale of Copenhaven's land, which consisted of a tract of 91 3/4 acres. Copenhaven having died, the land was subsequently sold, subject to the widow's dower, and at the sale she became the purchaser, for the sum of $900. This was in December, 1889, and on the 6th of March following the report of sale was filed in the clerk's office. The regular March term, which should have been held a few days thereafter, was not held, on account of the sickness of the judge, and for the same reason the regular August term of the same year was not held. Accordingly, on the 20th of August, 1890, the judge appoint-ed a special term, to commence on the next day. The warrant of the judge, directed to the clerk, was posted at the front door of the courthouse as the statute requires. It does not affirmatively appear, however, whether or not the clerk informed the attorney for the commonwealth and the Bheriff, or either of them, that a special term had been ordered. But it does appear that the special term began on the 21st of August, as appointed, and that the court was adjourned without the transaction of any business, till 9 o'clock the next morning. On the 23d of August, the third day of the term, the report of sale above mentioned was confirmed, no exception thereto having been taken. Nothing further appears to have beer, done in the cause until after the death of the widow, which...