Eakin S. v. Eakin S.

• Decision Date: 04 March 1919
• Docket Number: No. 3688.,3688.
• Court: West Virginia Supreme Court
• Parties: Eoscoe Eakin et als. v. Marion B. F. Eakin et als.

83 W.Va. 512

Eoscoe Eakin et als.

v.Marion B. F. Eakin et als.

No. 3688.

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1919.

Decided March 4, 1919.

1. Appeal and Error Appeal from Tart of Decree Acceptance of Benefits.

Generally a party availing himself of a decree so far as favorable to him cannot appeal from the decree wherein it is not favor' able to him, if his acceptance of the benefit on the one hand is totally inconsistent with appeal on the other. (p. 516).

2. Same Trosecuiion of Appeal Waiver of Errors.

No waiver or release of errors operating as a bar to the further prosecution of an appeal or writ of error can be implied except from conduct which is inconsistent with the claim of right to reverse the decree or judgment which it is sought to bring in review. (p. 516).

3. Same Appeal from Part of Decree Acceptance of Benefits Waiver of Appeal.

Where the parts of a decree are separate and independent, and the receipt of a benefit from one part is not inconsistent with an appeal from another, the party receiving the benefit will not be deemed to have waived his right to appeal. (p. 516).

4. Same.

Where, after confirmation of a judicial sale, the court later sets it aside because of a higher offer, orders a resale, and directs the return of the money paid and notes delivered by the first purchaser, the portion of the decree directing the return of the money and notes is clearly separable and independent from that part of the decree which totally deprives the purchaser of all his rights under the sale confirmed to him, and the acceptance of the one under protest at the direction of the court cannot reasonably be construed into a waiver of his right to appeal the other. (p. 518).

5. Same Vacation of Judicial Sale Purchaser's Rights of Appeal.

A purchaser at a judicial sale which has been confirmed has acquired such a fixed interest in the property sold as entitles him, though not a party to the original suit, to appeal to a higher tribunal to protect his rights against an improper setting aside of such sale, at least where the resale has been made and confirmed by the court. (p 519).

6. Judicial Sales Control of Court Confirmation.

There is a wide difference between the court's power of control over a sale before and after confirmation, (p. 519).

7. Appeal and Error Judicial Sales Confirmation Rights of Purchaser Direction of Resale Discretion.

Before confirmation the rights of the purchaser are inchoate, and upon a showing of inadequacy of price, or upon an offer of a higher bid, properly secured, it is discretionary with the court whether it will confirm the sale or set it aside and direct a resale. The exercise of this discretion depends in large measure upon the facts of each case, abuse thereof when effecting inequities being subject to review by the appellate court. (p. 519).

8. Judicial Sales Confirmation Rights of Purchaser Avoidance.

Upon the confirmation of a judicial sale the rights of the purchaser become vested. Thereafter nothing except fraud, accident, mistake, or some other cause for which equity would avoid a like sale between private parties, will warrant a court in avoiding the sale or in opening it for other bids. Mere inadequacy of price or tender of a higher bid will not suffice, unless they themselves clearly import fraud, or are accompanied by other facts or circumstances constituting good cause such as are above stated. (p. 520).

9. Same Vacation of Confirmation Decree.

The decree setting aside the confirmation should clearly set forth the facts relied on as good cause warranting a resale, and generally it is not sufficient to use the indefinite phrase, "good cause appearing." (p. 520).

10. Same Confirmation Avoidance.

The general rule that courts have control of decrees during the term at which they are rendered does not confer power to avoid confirmed judicial sales except for such cause as is mentioned in a preceding point. (p. 521).

11. Same.

The only effect of this rule on judicial sales is to enable courts to consider alleged reasons for avoiding them during the term on motion or order to show cause after due notice without requiring formal bills for that purpose. (p. 521).

12. Case Overruled.

Statements in National Bank of Kingwood v. Jarvis, 26 W. Va. 785, and 28 W. Va. 805, are overruled in so far as they are inconsistent with this opinion. (p. 521).

Appeal from Circuit Court, Monongalia County.

Suit for partition by Boseoe Eakin and others against Marion B. P. Eakin and others. From a decree setting aside the confirmation of a sale to them and ordering a resale, James A. Provins and others, purchasers at former sale, obtained an appeal and supersedeas, and the Hess Coal & Coke Company moves to dismiss appeal.

Reversed and remanded.

E. M. Everly and Cox & Baker, for appellants.

Stewart & John and Donley & Hatfield, for appellees.

Lynch, Judge:

In a suit to partition lands there was assigned to infants and decreed to be sold for their benefit upon specified terms and conditions, subject to the usual approval and confirmation by the court, a tract of 22-2/3 acres, part of the estate divided. The right so to dispose of the property by sale and the propriety or necessity therefor are not controverted or questioned in any manner.

The sale first partially effected and reported was not confirmed, but a readvertisement and resale were ordered because the purchaser failed or refused to comply with the terms prescribed in the decree and notice. The second was not accepted or confirmed, and again a readvertisement and resale were ordered, this time because of an increased offer for the property by another prospective bidder. The third was made, reported and confirmed, and the deed ordered to be executed and delivered to the purchasers, James A. Provins, Lewis Ladone and Prank Ladone, who before the confirmation had in all respects complied with the terms and conditions of the decree of sale and advertisement by paying to the commissioner the amount required in cash, and by delivering to him the notes for the deferred payments, as to the regularity and adequacy of which there was no objection or exception interposed by anyone interested as a party or otherwise, until after the record entry of the confirmatory decree.

Thereafter and before but near the close of the term, the court, upon the petition and upset bid of Robert E. Guy, an attorney practicing at the bar of the court, who, it is charged and not denied, had notice and knowledge of the proceedings in the cause and the efforts to consummate the sales, set aside the decree of confirmation, and for the fourth time directed the property to be sold, and it was sold, at the bar of the court in the presence and under the supervision of the judge thereof, and purchased by or for the Hess Coal & Coke Company upon competitive bidding for an amount about $8,000 in excess of the accepted offer of Provins, Ladone and Ladone, the former purchasers, the sale to whom had been ratified and confirmed without objection and the deed for the land directed to be executed and delivered. Prom the decree last referred to Provins and Ladones obtained an appeal and supersedeas, and the writ is now before us upon their motion to reverse, made upon leave applied for and granted and notice of the motion duly given and served, and upon a counter motion made without leave first had, but after due notice, by Hess Coal & Coke Company to dismiss the appeal and supersedeas. The motion to dismiss rests solely upon the ground that, as Provins and his copurchasers, pursuant to and as directed by the decree setting aside the sale confirmed to them, accepted from the commissioner the money paid and notes executed by them to him required by the decree of sale, they were not entitled, and should not be permitted, to prosecute this writ. To the hearing of the motion appellants object because no leave of court was applied for or granted.

Differently stated, the proposition relied on as warranting dismissal is that, as appellants accepted the benefit of the decree annulling the sale confirmed to them by receiving from the commissioner the money paid and notes executed by them, they waived the right to obtain and prosecute an appeal from the later decree confirming the sale to the appellee. The leave without which it is said the motion cannot be allowed or entertained may not always be essential. Where a meritorious cause for the dismissal of an appellate process exists, a motion therefor can be made at any time when not directly or impliedly prohibited by statute or some rule of law. Our statute, section 26, ch. 135, Code 1918, as amended by chapter 69, Acts 1915, however, seems to require leave and notice of a motion to dismiss an appeal for cause, as well as for a motion to affirm or reverse the decree or judgment complained of. Whether it does or not as applied to the situation here disclosed ceases to be important, if, admitting the fact to be as stated by appellee, but not conceding the conclusion based on that fact, and according to the motion the same consideration and force it would justly be entitled to had leave been granted, it nevertheless appears that upon a full hearing upon the merits of the cause the fact relied on cannot avail to dismiss the appeal.

Have the matters urged by appellee the preclusive force and effect attributed to them? That is, does the acceptance of the money paid and the notes executed by appellants after the decree setting aside the sale confirmed to them deprive them of the right to prosecute this appeal? The answer to the question stated depends upon whether or not the acceptance was voluntary or inconsistant with a claim of right to appeal from another portion of the decree. The general rule is that a party who enforces or otherwise accepts the benefit of a judgment, order, or decree cannot afterward ask to have it reviewed for error or deny the authority which granted it. McKain v. Mullen, 65 W. Va. 558; Bright...