Bethurum v. Baker

• Decision Date: 03 November 1915
• Citation: 166 Ky. 507,179 S.W. 436
• Parties: BETHURUM v. BAKER ET AL.
• Court: Kentucky Court of Appeals

179 S.W. 436

166 Ky. 507

BETHURUM v. BAKER ET AL.

Court of Appeals of Kentucky.

November 3, 1915

Appeal from Circuit Court, Rockcastle County.

Action by L. W. Bethurum against W. H. Baker and another consolidated with an action by the People's Bank. From a judgment setting aside a mortgage sale, the named plaintiff appeals. Reversed, with instructions.

Bethurum & Lewis, of Mt. Vernon, for appellant.

C. C Williams, of Mt. Vernon, for appellee.

MILLER C.J.

On June 2, 1911, the appellees, W. H. Baker and wife, mortgaged their Langford tract of 15 acres, situated on Round Stone creek, in Rockcastle county, to B. F. Hill, to secure the payment of a note of even date therewith, for $424. Hill assigned the note to the appellant Bethurum. Subsequently, on the 14th of September, 1911, Baker and wife mortgaged the Langford tract and a house and lot on Main street, in Mt. Vernon, known as the "Hotel Property," to Williams, Mullins &amp Richards, to secure three notes aggregating $2,250. By successive assignments, these last three notes became the property of the People's Bank of Mt. Vernon. On April 18th, 1913, Bethurum instituted this action to enforce his mortgage lien upon the Langford tract; and on August 8th of the same year, the People's Bank instituted an action against Baker and wife to enforce its lien upon the Langford tract and the Hotel Property. The two suits were consolidated and proceeded to a judgment on August 30, 1913, enforcing the liens and directing a sale of the mortgaged property to pay the respective debts of the plaintiffs. The Langford tract was appraised at $1,000. The judgment provided that in case Bethurum directed a sale, the commissioner should sell only the Langford tract, or so much thereof as was necessary to pay Bethurum's debt, and any surplus remaining from the sale of that tract should be retained by the commissioner, subject to the order of the court. Bethurum directed a sale; and, when Griffin, the master commissioner, after due advertisement, was preparing to cry the property, C. C. Williams, who had been Mrs. Baker's attorney in a divorce case, and was presumably acting for her, or for himself as assignor of the notes then held by the People's Bank, stated to Griffin that he objected to his selling the Langford tract first, because the judgment provided that the Hotel Property should first be sold, and, if it failed to bring enough to satisfy the indebtedness for which the mortgage was executed, then the Langford tract should be sold. Bethurum disputed the correctness of Williams' statement, and after some further disputation between Bethurum and Williams, Griffin proceeded with the sale of the Langford tract. Bethurum started the bidding with an offer of $250; and, there being no other bid, Griffin knocked down the property to Bethurum. Immediately thereafter, and before the crowd had dispersed, Bethurum announced that he would waive any right he had under his bid, and told Griffin he might again offer the property for sale, and that he would cause them no trouble about his bid of $250. Griffin again offered the property for sale, and Bethurum bid $667 therefor, and it was again knocked down to him, Bethurum complied with the terms of sale by giving bond, and the commissioner so reported it to the court. The defendant W. H. Baker excepted to the report, because the commissioner sold the Langford tract for a sum less than two-thirds of its appraised value, thereby saving to the defendants a right of redemption, but that after the land had been sold for less than two-thirds of its appraised value, the commissioner, without right, and without an order of court, resold said tract for $667, which was more than two-thirds of its appraised value, thereby attempting to deprive the defendant of his right to redeem said land. The court sustained the exception, and from a judgment setting aside the sale, Bethurum prosecutes this appeal.

Under section 1684 of the Kentucky Statutes, if property be sold at a judicial sale for less than two-thirds of its appraised value, the owner has the right to redeem it within one year thereafter, by repaying to the purchaser the original purchase money, with 10 per cent. interest thereon. This exception presents only one question for determination upon this appeal, viz.: Did the commissioner have the right to make the second sale?

The court's power to set aside a judicial sale and order another sale, is not an arbitrary power. It can only be exercised for cause showing such irregularities in the proceedings, or such misconduct on the part of persons interested, or officious intermeddlers, as presumably interfered with the property bringing its reasonable value. But the court must regard the rights of all the parties including the purchaser, and exercise a legal discretion as to rejecting or confirming sales. Hughes v. Swope, ...