6 S.E. 920 (W.Va. 1888), Hutson v. Sadler

Citation:6 S.E. 920, 31 W.Va. 358
Opinion Judge:JOHNSON, P.
Party Name:HUTSON et al. v. SADLER.
Attorney:P. Gano, for appellant. J. V. Blair, for appellees.
Judge Panel:SNYDER and WOODS, JJ., concur.
Case Date:June 27, 1888
Court:Supreme Court of Appeals of West Virginia

Page 920

6 S.E. 920 (W.Va. 1888)

31 W.Va. 358

HUTSON et al.

v.

SADLER.

Supreme Court of Appeals of West Virginia.

June 27, 1888

Submitted June 7, 1888.

Syllabus by the Court.

Where a decree requires land to be sold at public sale, the commissioner has no authority to sell the land at private sale, and such a sale will not be confirmed by the court. The sale is void.

Where a decree was rendered for the sale of a tract of land at [31 W.Va. 359]public sale, and there was but one judgment lien upon it at the time, and, by the consent of the judgment creditor and the debtor, the land was, by the commissioner, sold to the wife of the debtor, and, out of her own separate estate, she, without fraud, paid for the land, by paying the said judgment and costs of the suit, and afterwards another judgment was recovered against the debtor, while the wife is not entitled to hold the land under her purchase, yet she is entitled to be subrogated to the rights of the creditors in the said judgment which she discharged.

Appeal from circuit court, Doddridge county; T. I. STEALEY, Judge.

P. Gano, for appellant.

J. V. Blair, for appellees.

JOHNSON, P.

In 1879 the heirs at law of Monticue Hutson filed their bill in the circuit court of Doddridge county to enforce a judgment lien for over $700 against a tract of 218 acres of land of the defendant, Rudolph Sadler. No answer was filed. On the 26th day of July, 1882, a decree on bill taken for confessed was entered for the sale of said land to discharge the lien. This decree required that, after proper advertisement, the land should "be sold at public auction at the front door of the court-house of Doddridge county, on some court day, for sufficient cash in hand to pay the costs of suit and expense of sale, and for the residue that a credit be given, in equal payments, at six, twelve, and eighteen months," etc. P Gano was appointed a commissioner to sell the land, and by the decree was required "to report his proceedings under the decree to the court." At the March term, 1886, he made his report, "that he had made said sale; that, by the consent and direction of the complainants and direction of the defendant, he did not advertise said sale as directed by the decree, and, with like consent, made said sale to Susan Sadler on November 20, 1882, which said sale was approved by the defendant as satisfactory, for...

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