Cowper v. Weaver's Adm'r

• Citation: 84 S.W. 323,119 Ky. 401
• Parties: COWPER v. WEAVER'S ADM'R.
• Decision Date: 10 January 1905
• Court: Kentucky Court of Appeals

84 S.W. 323

119 Ky. 401

COWPER v. WEAVER'S ADM'R.

Court of Appeals of Kentucky.

January 10, 1905

Appeal from Circuit Court, Livingston County.

"To be officially reported."

Proceedings by the administrator of D. B. Weaver, deceased, against R. B Cowper, to recover damages for defendant's failure to perform his bid at a judicial sale. From a judgment for petitioner, defendant appeals. Reversed.

Hendrick & Miller and J. C. Hodge, for appellant.

C. H Wilson, J. W. Bush, and C. C. Crassham, for appellee.

HOBSON J.

D. B Weaver died a resident of Livingston county, and his administrator brought this suit to sell the land owned by him for the payment of debts, and for the settlement of his estate. At the April term, 1903, a judgment was entered directing a sale of the real estate. The sale was made on June 1st, and at it appellant, R. B. Cowper, bid in lots 67, 68, 69, 70, and a part of lot 17, for $265. After the sale he seems to have concluded that the title of the intestate to the land was not good, and refused to execute a bond for the price. The commissioner on September 9th filed his report of sale; stating that Cowper had purchased the property at the sale, and had refused to execute a sale bond. On this report on September 25th the court, without taking any proceedings against Cowper or confirming the sale, entered the following order: "It appearing to the court by report of the master commissioner, W. I. Clarke, that he sold to R. B. Cowper lots 67, 68, 69, 70, and 71, and a part of outlot No. 17, as appears on the town plat of Smithland, Kentucky, and said Cowper having failed and refused to execute bonds therefor, and said fact being made known to this court as aforesaid, the said commissioner is here directed to treat said sale to Cowper as if it had not been made, and readvertise said property for sale, and sell same in the full way and manner set out and directed in the judgment filed herein, and will in all respects comply with said judgment in taking bond, making report, and so forth and so on, as herein set out; and this cause is continued." The resale was made on November 2, 1893, and at it the property brought the sum of $32. Thereupon, at the December term of the court, the court awarded a rule against Cowper to show cause, if any he could, why he should not pay the difference between the bid made by him and the bid made at the second sale, which the court then confirmed. Appellant, Cowper, in response to this rule, set out that the intestate had no title to the property, and also relied on various irregularities in the proceedings. He also set up the order above quoted, by which the sale to him was ordered to be treated as a nullity, and pleaded it in bar of the rule, in connection with the subsequent orders of the court confirming the second sale, and conveying the property to the purchaser thereat.

In Makemson v. Brann, 37 S.W. 495, 18 Ky. Law Rep. 584, the commissioner sold a tract of land, and, the purchaser failing to execute bond, readvertised the property, and made a second sale at the next county court. He then reported to the court both the sales. The court confirmed the second sale, and ordered the property conveyed to the purchaser. After this a rule was...