Bovay v. Townsend, 10173.

• Decision Date: 12 June 1935
• Docket Number: No. 10173.,10173.
• Citation: 78 F.2d 343,105 ALR 359
• Parties: BOVAY et al. v. TOWNSEND.
• Court: U.S. Court of Appeals — Eighth Circuit

105 ALR 359, 78 F.2d 343 (1935)

BOVAY et al. v. TOWNSEND.

No. 10173.

Circuit Court of Appeals, Eighth Circuit.

June 12, 1935.

J. A. Tellier, of Little Rock, Ark., for appellants.

Max Frederick Goldberg, of Chicago, Ill. (Joseph W. House, of Little Rock, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

This is an appeal from an order of court confirming, over objection, the sale of two certain bridges, called in the record the Des Arc Bridge and the Powhatan Bridge, under a decree of foreclosure of a mortgage. Both bridges were owned by a single company, and were covered by the same mortgage and decree of foreclosure. They were situate in different counties, on different highways, crossed different rivers, and were some 85 miles apart.

Appellant Bovay is the holder of certain stock in, and a creditor of, the company which owned the bridges; other appellants together own some four bonds, par value $1,000 each, out of a total issue of $400,000, secured by the mortgage which was foreclosed. On a sale had in gross, both bridges were sold together for the sum of $50,000. They had cost to build about $463,000, including all outlay for construction costs.

Appellants objected to the confirmation of the sale on numerous grounds. Evidence was heard, and, being concluded, the court, as a conditon of approving the sale, ordered the successful bidder to increase the bid to $100,000, which, being done, the sale was approved and confirmed, and the objectors, now here as appellants, took this appeal.

The successful bidder was the reorganization promoters, consisting of the bondholders' protective committee which had on deposit about 99 per cent. of all outstanding bonds, and which bought the bridges for the depositing bondholders, or a corporation organized by them, called the Des Arc & Powhatan Bridge Company.

On the hearing, or contest against confirmation, evidence of the fair value of the bridges varied from about $81,000 to about $350,000. The evidence disclosed that the gross annual income, less expenses of the two bridges over a period of four and three-quarter years, ran thus: 1928, $19, 688; 1929, $37,571; 1930, $34,302; 1931, $17,562; 1932 (for nine months), $14,649, or at the rate of $17,532 for the whole year.

The yearly average of these earnings, over the five-year period, is thus found to be $25,351. If an annual depreciation of 2 per cent. (based on an assumed value merely of the bonds outstanding) be deducted, these average earnings will still be about $17,350. If this sum be capitalized on a 6 per cent. annual return to stockholders, it amounts to about $290,000, as the value of the bridges. Factors, affecting both the fat years and the lean years, were shown in evidence, touching whether the average annual earnings could or could not be maintained in the future. These dealt with the existing so-called depression, with the improvements of connecting highways, and the effect of competition with a new state-owned bridge over White river at Augusta, some 25 miles north of the Des Arc Bridge.

Appellants, as said already, filed objections to the confirmation of the sale. Later, they filed so-called intervening petitions as stockholder and bondholders, respectively, objecting to the confirmation of the sale, for that (a) the purchase price for which the re-organization managers of the bondholders' protective committee, called in the record the Des Arc & Powhatan Bridge Company, bid in the bridges, was grossly inadequate, as compared to the actual value of the bridges; (b) that the terms of the decree were unfair, onerous, and unduly burdensome to all potential bidders, except the Des Arc & Powhatan Bridge Company, in that a deposit of either $10,000, in cash, or $25,000 in bonds, was required to be put up, before any person could become a bidder; (c) that the order of sale of the two bridges as a unit, instead of selling them separately, was error; (d) that the actual sale of the bridges was not had at the time or place advertised, but that it was had at the courtroom and without any advertisement whatever; and (e) no upset or minimum price was fixed by the court. Other objections, as that, in effect, the sale should not have been had during the existing so-called depression and that the bidder to whom the bridges were sold had not qualified as a lawful bidder under the terms of the decree and order of sale, need only mere mention, in the view we are constrained to take of the case.

It is also urged as error that the court erred in dismissing the several intervening petitions filed by appellants. But it is so obvious that these dismissals have nothing whatever to do with the merits of the appeal or with the questions now up for judgment that we merely mention the contention and pass it without discussion.

In discussing appellants' contention that the purchase price was so grossly inadequate that it was calculated to shock the conscience of a chancellor, we must, we think, on this point, consider only the price of $100,000, as fixed by the court as a condition of overruling the objections of appellants and confirming the sale. The simple situation is that appellants, being dissatisfied with the sufficiency in amount of this increase from $50,000 to $100,000, have nevertheless appealed, for this and other reasons.

Here the final bid at which the bridges were sold was about $19,000 more than the estimate of value fixed by a witness for appellee, and was as 1 is to 3.5, of the value fixed by a witness for appellants. Standing alone, it seems clear that there was no abuse of discretion, if that were all that is involved in the objections of the appellants, for the books are replete with cases wherein the discrepancy between actual value and purchase price is far greater than in the case at bar. Guaranty Trust Co. v. Chicago, etc., Ry. (D. C.) 15 F.(2d) 434; Central Trust & Savings Co. v. Chester, etc., Co., 9 Del. Ch. 123, 77 A. 771; Rospigliosi v. New Orleans, etc., R. Co. (C. C. A.) 237 F. 341; Simon v. New Orleans, T. & M. R. Co. (C. C. A.) 242 F. 62. Yet the sales were confirmed. On the other hand, there are many cases wherein the purchase price at a public judicial sale approximated one-half or three-fourths of the actual value. Wood v. Parker, 63 N. C. 379; Beaty v. Veon, 18 W. Va. 291; Sowards v. Pritchett, 37 Ill. 517; Kemp v. Hein, 48 Wis. 32, 3 N. W. 831; Rosenham v. Pottinger, 60 S. W. 370, 22 Ky. Law Rep. 1290; Harlan v. Stout, 22 Ind. 488. Yet the sales were set aside. There were, however, in almost all of the cases last cited, other circumstances besides mere inadequacy of price, contributing to cause the setting aside of the sale.

The rule in the federal courts is quite well settled, however, that the matter of confirming a public judicial sale rests in the sound judicial discretion of the trial court and that appellate courts will not disturb that discretion, except in cases of its abuse. Pewabic Mining Co. v. Mason, 145 U. S. 349, 12 S. Ct. 887, 36 L. Ed. 732; Jacobsohn v. Larkey (C. C. A.) 245 F. 538, L. R. A. 1918C, 1176; Speers Sand & Clay Works v. American Trust Co. (C. C. A.) 52 F.(2d) 831, 835; Currin v. Nourse (C. C. A.) 66 F.(2d) 137; Bethlehem Steel Co. v. International, etc., Corp. (C. C. A.) 66 F.(2d) 409; 16 R. C. L. 95.

In the case of Speers Sand & Clay Works v. American Trust Co., supra, the rule was stated thus: "The rule is well settled that `a judicial sale regularly made in the manner prescribed by law, upon due notice, and without fraud, unfairness, surprise or mistake, will not generally be set aside or refused confirmation on account of mere inadequacy of price, however great, unless the inadequacy is so gross as to shock the conscience and raise a presumption of fraud, unfairness, or mistake.'"

So, in view of the great variance in the evidence as to the value of the bridges, and in the light of the quoted rule, it cannot be said that there was such an inadequacy in the price last bid as to shock the conscience of a chancellor.

The contention urged by appellants that the terms of the sale, as fixed by the trial court, were unduly burdensome and favored the purchaser, and precluded other potential bidders, must likewise be disallowed. No bidder except the representatives of the hondholders' protective committee could, it is true, comply with the requirement to deposit $25,000 in bonds; but the alternative fixed was the deposit of $10,000, in cash. The requirement of a deposit, either in cash or bonds, prior to the sale of property under a decree of foreclosure, by any person who desires to...