Benet v. Ford

• Citation: 113 Va. 442,74 S.E. 394
• Parties: BENET et al. v. FORD et al.
• Decision Date: 21 March 1912
• Court: Supreme Court of Virginia

74 S.E. 394

(113 Va. 442)

BENET et al.

v.FORD et al.

Supreme Court of Appeals of Virginia.

March 21, 1912.

1. Judicial Sales (§ 8*)—Power op Court op Equity.

Where a court of equity orders a sale of property on the ground that a sale is absolutely necessary, and appoints commissioners to sell at auction or at a private sale, the commissioners may hold a private sale, where a public sale after due notice has failed to bring a purchaser at a satisfactory price, and where a delay will involve depreciation in the property, which yields no income comparable to the expenses of preserving it.

[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. § 32; Dec. Dig. § 8.*]

2. Judicial Sales (§ 1*) — Discretion of Court.

A court of equity, ordering a sale of property under its control, must exercise a sound legal discretion, with a view to fairness and just regard to the rights of all persons interested.

[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 1-4; Dec. Dig. § 1.*]

3. Judicial Sales (§ 31*)—Objections-Burden of Proof.

A party, objecting to the confirmation of a sale by a court of equity, has the burden to show that he has been injured by the sale.

[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 59-67; Dec. Dig. § 31.*]

4. Judicial Sales (§ 31*)—Objections-Burden of Proof.

A court of equity ordered a sale of property, and appointed commissioners to sell at public auction or at private sale. The commissioners were unable to sell the property at a fair price at a public sale held under favor-able conditions. Thereafter the commissioners negotiated for a private sale, and made a sale largely in excess of the highest bid at the auction. No evidence was offered as to how or from whom a better price could be obtained. Held to justify a confirmation of the sale.

[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 50-67; Dec. Dig. § 31.*]

5. Judicial Sales (§ 31*)—Objections—

Burden of Proof.

The highest bid made at an open judicial sale fairly conducted after full notice, in the face of such competition as can be attracted, is a fair criterion of the value of the property at that time, and subsequent opinions are entitled to but little weight in comparison.

[Ed. Note.—For other cases, see Judicial Sales, Cent. Dig. §§ 59-67; Dec. Dig. § 31.*]

Appeal from Chancery Court of Richmond.

Proceedings for the judicial sale of the A. J. Ford trust estate, in the combined cases involving that estate. From a decree confirming a sale, Mary Lee Benet and another appeal. Affirmed.

R. E. Byrd, for appellants.

David Meade White, McGuire, Riely & Bryan, and Robt. H. Talley, for appellees.

CARDWELL, J. The litigation out of which this appeal arises has been of long standing and conducted in four separate suits in equity, involving the rights and interests of various parties in what is spoken of in the record as the "A. J. Ford Trust Estate, " including the "Ford's Hotel" property, situated at the southeast corner of Broad and Eleventh streets in the city of Richmond. Said suits involved also the rights of the various creditors of the respective parties interested in the trust estate.

These causes were, in the course of litigation, consolidated or heard together, and by various decrees entered therein the rights of all parties to the said suits and others concerned in the property involved were sufficiently and finally determined to warrant, and, indeed, to require, the court, in the exercise of its judicial discretion, to sell the trust property, in order that the proceeds of such sale or sales might be distributed among the parties entitled thereto. No question was ever raised, it would seem, that a sale of the trust estate was absolutely necessary, inasmuch as a partition thereof in kind among the parties entitled thereto was impracticable. We are concerned, however, on this appeal, with only that part of said trust estate spoken of as the "Ford's Hotel" property.

It appears that the burdens on this trust property, in the way of taxes, repairs, and other necessary expenses, were greater than the income from the property, and that creditors of the various parties interested were asserting their rights, and thus more seriously complicating the situation. In this situation the parties, whose rights in the estate were not denied or contested in any way, could neither enjoy the property nor receive any benefit therefrom on account of its chaotic condition, due alone to a contest over the interest of B. W. Ford, which does not exceed, if it is so much as, one-fourth of the trust estate.

By reason of the condition of the trust property and the expenses thereof exceeding the income from it, which condition had continued for a long while, negotiations Were begun and conducted between the parties holding different interests, which resulted in a decree entered by the trial court on the 26th day of April, 1910, completely settling the rights of all parties and fixing their re-sportive interests in the trust estate. By said decree Robert H. Talley, R. E. Byrd, David M. White, Henry C. Riely, and Addison L. Holladay were appointed special commissioners to sell certain of the trust property, of which "Ford's Hotel" was a part. The decree gave authority to any three or more of the special commissioners to act, and authorized them to sell the property, either privately or at auction, but subject to confirmation by the court. Holladay refused to act, and the other four special commissioners, after duly qualifying as such by executing the bond required of them by the court, and after conference with four of the leading real estate agents in the city of Richmond, decided to offer the real estate in the city, mentioned in the decree, for sale at auction on the 18th day of May, 1910. On the day named "Ford's Hotel" was offered for sale at public auction; but, although the offering was under favorable conditions, the highest bid received for it was $80,000, and thereupon the special commissioners, after they found that they could not obtain a higher bid, withdrew the property.

It further appears that from the 18th day of May, 1910, until the 24th day of May, 1911, the "Ford's Hotel" property was on the market for sale, but the special commissioners received no offer for it. In the meantime the buildings on said property, which had been used as a hotel, had gone so far from bad to worse in their condition that the building inspector of the city declined to permit them to be occupied, and, having been practically vacant for two years, the income therefrom was but a trifle as compared to the yearly taxes thereon and the costs of caring for and protecting the property. Moreover, owing to the condemnation of the buildings by the building inspector, all insurance on them had been canceled.

On the 16th day of January, 1911, an ordinance of the council of the city of Richmond, approved by its mayor, directed the city's attorney to acquire by gift, purchase, or condemnation the lot or block of land bounded by Broad street on the north, Capitol street on the south, Eleventh street on the west, and Twelfth street...