Campbell v. Carter

• Decision Date: 10 October 1946
• Docket Number: 2 Div. 222.
• Citation: 248 Ala. 294,27 So.2d 490
• Parties: CAMPBELL et al. v. CARTER.
• Court: Alabama Supreme Court

27 So.2d 490

248 Ala. 294

CAMPBELL et al. v. CARTER.

2 Div. 222.

Supreme Court of Alabama

October 10, 1946

Pettus, Fuller, Reeves & Stewart and T. G Gayle, all of Selma, for appellants.

Gamble & Lapsley, of Selma, for appellee.

SIMPSON Justice.

The appeal seeks to reverse a decree of the circuit court in equity, confirming a partition sale to appellee of lands of the estate of Edward Tavel, deceased.

The decree ordering the sale designated the two administrators of the estate as commissioners to sell the land either publicly or privately, subject to confirmation by the court. Pursuant to this authority a private sale of the property was negotiated and finally consummated with appellee, who made a deposit of $500 and was ready and able to pay the balance when the sale should be confirmed by the court. The appellee at this judicial sale, thus became the purchaser--'that is, one whose offer to purchase is accepted by the officer authorized to make the sale, subject to confirmation by the court in due course.' Harduval v. Merchants' &amp Mechanics' Trust & Savings Bank, 204 Ala. 187, 188, 86 So. 52.

Though the sale is regarded as in negotiation and is not complete until confirmed by the court, the bidder to whom the property is sold is recognized as the purchaser. He becomes a quasi party to the cause, acquires certain equities in the property, and is subject to the decretal orders of the court with reference to the sale. Taylor v. Wilson, 233 Ala. 182, 170 So. 833; Harduval v. Merchants' & Mechanics' Trust & Savings Bank, supra.

The commissioners, however, failed to report this sale to the court, and about thirty days thereafter, Mrs. Campbell, one of them (the other commissioner having died in the meantime), negotiated and received a second offer from her son, advancing the price about ten per cent. She then reported both bids to the court and requested confirmation of the second one.

The court confirmed the first sale made to appellee and this appeal is by administratrix Campbell and the other heirs at law of the decedent, who challenge the decree for this action and for failing to approve the second bid. No contention is made that the first sale was not fairly and regularly conducted nor that the property did not bring its fair value, but it is insisted that since the sale was not binding on the estate until confirmed by the court (Henry v. White, 224 Ala. 427, 140 So. 391; Wilson v. Phillips, 235 Ala. 410, 179 So. 203), it was the duty of the court to accept the second bid because it was more. This is not the legal test.

As to judicial sales generally, the courts of this country, including our own, have never countenanced the practice of ordering a re-sale upon mere advance in the amount bid (Littell v. Zuntz, 2 Ala. 256, 36 Am.Dec. 415), but have adhered to the principle that where the sale is to a stranger and fairly conducted, without fraud or mistake, inadequacy of price alone will not suffice to set the sale aside unless so grossly disproportionate to the real value as to amount to fraud. Harduval v. Merchants' & Mechanics' Trust & Savings Bank, supra, 204 Ala. at page 188, 86 So. 52.

This is the general, underlying principle and based on public policy, recognizing that to adopt a rule of setting aside sales because of a subsequent, advance offer would chill the bidding and render judicial sales generally unstable, thereby resulting in discouraging bidders and diminishing the amounts realized. Bethea v. Bethea, 136 Ala. 584, 34 So. 28; 35 C.J. 105, § 170.

This general principle cannot be overlooked in sales for distribution in the progress of the administration of an estate. While we have said that in such a proceeding 'the court should see that a reasonably fair price is obtained before confirming the sale' (Roy v. O'Neill, 168 Ala. 354, 52 So. 946, 948), the same policy against avoiding such sales because of a subsequent advance offer inhers and, if the court is satisfied the sale was fairly conducted and the land sold for a price not greatly less than its...