Abney Barnes Co. v. Davy Pocahontas Coal Co.
| Decision Date | 15 November 1921 |
| Docket Number | 4205. |
| Citation | 109 S.E. 616,89 W.Va. 504 |
| Parties | ABNEY BARNES CO. ET AL. v. DAVY POCAHONTAS COAL CO. ET AL. |
| Court | West Virginia Supreme Court |
Submitted October 25, 1921.
Syllabus by the Court.
Where the court decreeing a sale of property by special commissioners, and before the report of the sale by the commissioners is confirmed, upon an upset bid filed opens up the sale and entertains competitive bidding in open court and finally knocks down the property to the purchaser at the former sale at a greatly advanced price, the prior exceptions filed to the report of the special commissioners for supposed defects in the notice of sale and unsupported charges of efforts on the part of the purchaser and others to stifle bidding, will not be applied to the sale so made by the court and duly confirmed, and to which no exceptions were taken prior to confirmation.
Nor will the proposition of a mortgage debtor, made to such special commissioners during the crying of the sale, to redeem the property by complying with some provisions of the mortgage, not entertained by such special commissioners nor reported by them to the court, be good ground for setting aside a sale made by the court in open court under a decree directing the property to be sold, not only for the benefit of the mortgage creditors, but also for the benefit of other lien creditors who instituted the suit and whose claims and their priorities were thereby decreed, such proposition not having been renewed to the court before confirmation of the sale upon an upset bid filed and entertained by the court.
To justify the setting aside of a judicial sale, the evidence to support the motion must be strong and convincing, else it should be denied.
The court having jurisdiction may make sale of the property proceeded against by creditors without the intervention of a special commissioner, and upon entertaining an upset bid, may conduct such sale in open court, and when a sale is so made and confirmed, exceptions filed to a prior report of sale by special commissioners, not pertinent to the sale made by the court, need not be considered, and will be unavailing in this court upon appeal.
Appeal from Circuit Court, McDowell County.
Suit by the Abney Barnes Company and another against the Davy Pocahontas Coal Company and others, and from a decree therein the said coal company appeals. Affirmed.
E. C Marshall and Litz & Harman, all of Welch, for appellant.
Strother Sale, Curd & Tucker, of Welch, for appellees.
On May 12, 1919, the circuit court, by a decree agreed to and signed by the attorneys representing all parties to the cause, after reciting therein that the court had ascertained and decreed all liens and debts on the property of the Davy Pocahontas Coal Company, and disbursed on the prior liens as adjudged and decreed in prior decrees all the available funds in the hands of its special receivers except such as had been received by them since the last preceding term of the court, in accordance with the opinion and mandate of this court on a former appeal, and it still appearing that there were various creditors who had not been paid by the disbursements made, and the court being of opinion that it was proper to do so, did thereby adjudge, order and decree that said special receivers, Iaeger and Atkinson, thereby appointed special commissioners for the purpose, be and they were thereby authorized and directed to sell all of the real estate described in a former decree, and other property of each and every kind, of the said company, except monies, bills and accounts receivable, as a whole, at public auction, in McDowell County, at the court house door, on or before the 2nd day of September, 1919, to the highest bidder upon the following terms: One-third in cash, and the balance in equal payments at six and twelve months after date, evidenced by the notes or bonds of the purchaser payable to said receivers, bearing interest from date, to be secured as directed by the court, with good and approved security. And said decree contained and directed that said special receivers before making said sale should first advertise the same by publishing the time, terms and place of sale in some newspaper published in the town of Welch, McDowell County, and in some daily newspaper published in the city of Baltimore, Maryland, for eight consecutive weeks, once each week in each of said papers, and by posting a copy of said advertisement, for the same period, at the front door of the court house of said county. And said decree also required of said special commissioners that they execute a bond as such in the penalty of $175,000.00. And it was by agreement also adjudged that every other thing that might otherwise be required or necessary to such decree of sale and not therein expressly provided for, was thereby expressly waived and done away with by those consenting to the decree. And said special receivers were thereby also directed to make a report of said sale at the first day of the September term of the court, 1919.
And pursuant to said decree of sale, said special commissioners having first qualified by giving bond as required, and after advertising the sale as directed, proceeded to and did sell said property upon the terms decreed, on said 2nd day of September, 1919, at which sale they reported to the court on September 9, 1919, that the Marine and Commerce Corporation of America, a corporation of the state of Delaware, being the highest bidder, had become the purchaser for the sum of $400,000.00, upon the terms provided by the decree, the commissioners however reporting, that as the purchaser had shown by affidavits and otherwise that it was the owner of 214 of the 297 six per cent sinking fund gold bonds of the Davy Pocahontas Coal Company, of the face value of $1,000.00 per bond, which entire issue was secured by the deed of trust of said defendant company to the Mercantile Trust & Deposit Company of Baltimore, trustee, dated July 1, 1910, and which bonds secured by said deed of trust were the first lien upon the property sold, and since only 83 of said outstanding bonds were not owned by said purchaser, they had required the purchaser to pay them in cash only...
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