"J. Matt Cooley files his petition in the above-stated cause, for the purpose of setting aside a sale made to Brown, Osborne & Co. under order of court in said cause on November sales day, 1902. The tract of land is known as the 'home tract' of A. T. Newell, and is referred to also as 'tract No. 2, ' containing 223 acres, more or less, lying and being in the county and state aforesaid, bounded by tracts No. 3 and No. 4, W. W. Thompson and others, more fully described by plat made by W. H. Shearer, surveyor, bearing date October 9, 1902. The petition, among other things, recites that by reason of the alleged misconduct of A. T. Newell, judgment debtor, of which Brown, Osborne & Co. had notice, and by reason of other facts and circumstances set out in the petition, the court should refuse to confirm the sale. It seems from the testimony that A. T. Newell, one of the parties in interest, owed large sums of money—about $14,800 being due to J. Matt Cooley, the petitioner, and about $4,800 being due to Brown, Osborne & Co.; Mr. Cooley having, as to them, the superior lien. The lands of Mr. Newell had been cut up into five tracts for the purpose of effecting a sale, and under the advertisement the home tract was to have been the second tract sold. It further seems that, up to within a few days of the time of sale, Mr. Newell had been making active preparations looking to the raising of money to prevent the sale, but all his arrangements had failed. In the meantime, however, he had spoken to the judge of probate, who was to make the sale, and had requested him to sell the home tract last. Finally the probate judge informed him that, if there was no objection, he would so make the sale, and when the time of sale arrived, having made the announcement, and no objection having been then offered, the order of sale was changed, and the home tract was offered for sale last, and was bid in by Brown, Osborne & Co. for $3,120, which, under the testimony, is less than half its value. Brown, Osborne & Co. complied with their bid, but the petitioner refused to take the money, and filed his petition. It further appears that at the sale W. S. Newell, who was in the employment of Mr. A. T. Newell, bought two of the tracts of land, one at $3,000 and the other at $3,650. Mr. A. T. Newell also, at said sale, bid off a tract of 293 acres at $5,000. Neither one of the Newells complied with any of the bids. The small tract of 43 3/4 acres was sold at said sale to W. N. Martin for $1,070. The three tracts of land bid in by the Newells were afterwards resold at prices stated in the report of the special referee, and sold for $3,600 less, in the aggregate, than the Newells' bids, although it seems that $5,000 was about a fair price for the 293-acre tract The mat-ters arising under the petition and the returns thereto were referred to Walter H. Hunt, Esq., as special referee, and he filed his report on the 21st day of February, 1903, finding all the facts adversely to the petitioner, and recommending that the petition be dismissed and the sale confirmed, and from his findings an appeal was taken to this court and was duly heard by me.
"The exceptions allege error as to almost every item of the report. The referee, in concluding his report, says: 'While inadequacy of price will cause the court to closely scrutinize the sale, and seize upon any circumstances indicating unfairness in the sale itself, or any improper conduct of the person reaping a benefit therefrom, to set it aside, and while the court is jealous of the integrity of its sales and insists upon the utmost fairness, it will not set aside a sale made under its order to the highest bidder solely upon the ground of inadequacy of price.' This is so well established as a matter of law that it does not need any authority to support it. Taking this as a correct exposition of the law, what must be the conclusion from the testimony in the case? Able counsel are engaged in the cause, and it has been most earnestly argued before me, and the report was made by a distinguished member of the bar, who took the testimony and saw the witnesses. I have great respect for their integrity and learning, but, notwithstanding this, a very careful perusal of the testimony leads me to differ from the referee and the learned counsel in their conclusions. Under the views entertained by me, I do not deem it necessary to do more than give a passing notice of the sixth exception, as the report of the referee must be reversed on the other exceptions raised.
"(1) Mr. Martin had authority to bid up to certain figures on each tract of land. His instructions were not to buy land if he could realize the debt without. He states emphatically that Mr. Cooley said that he did not wish to purchase the land. Authorizing Mr. Martin to bid to certain figures, and instructing him to do so, are entirely different matters. He had no such instructions, but was instructed that these were to be his limits, if necessary to collect the debt. The referee erred in construing the testimony to mean that Mr. Cooley had instructed Mr. Nance, the probate judge, not to permit the Newells to comply with their bid. A careful perusal of the testimony will show that Mr. Cooley did not desire Mr. Nance to grant so much time that he would not have an opportunity of readvertising the land for the next sales day. This was the cause of the complaint, and Mr. Cooley was not complaining because they desired to comply and were not permitted to do so. The fact is that he wanted his money, and did not desire to be delayed longer in getting it, and the record shows that he had just grounds for adopting such a course. Besides, the order of court required
the land to be resold if the bids were not complied with within five days, and Mr. Cooley had no right to change the order of court by preventing the parties from complying before the expiration of the five days, or by allowing them to do so without the further order of the court after that time, and the testimony shows that he attempted to do neither the one thing nor the other.
"(2) The testimony, I think, shows that tracts 1 and 4 referred to in the exceptions, were bid off at the first sale at sums far beyond their real value at either public or private sale. Just how one of the tracts reached the figure of $3,650 through any other agency than that of W. S. Newell has not been explained. There was but one bid that carried the other tract to $3,000, and that was the bid of W. S. Newell. No one has ever been found who was then, or is now, willing to pay any such price for this land, and it was subsequently fairly sold at public auction at figures approximating its real value.
"(3) Exception 3 is well taken, also, and is sustained by the testimony of Mr. A. T. Newell himself. He looked on the memorandum held by Mr. Martin, the agent of Mr. Cooley, and mistaking the instructions in reference to this tract for the instructions given in reference to the 'home tract, ' and thinking Mr. Cooley had instructed Mr. Martin to bid $5,800 on this tract, without any idea of becoming the owner of the land, made a bid of $5,000. Mr. Martin's instructions gave him a limit of something like $5,300 on this tract, and, as a smaller tract had already been sold for between $300 and $400 more than the limit given by Mr. Cooley, he could very well afford, in the exercise of his judgment, to drop off, when the 293-acre tract reached $5,000, and he did so, much to the surprise and consternation of Mr. Newell, who had not gone to the sale expecting to bid on this tract of land.
"(4) Exception 4 is well taken. Mr. Martin had authority to make these lands bring a fair price, and was prevented from bidding by the conduct of W. S. Newell and A. T. Newell. W. S. Newell was but the agent of A. T. Newell in these transactions, as the testimony abundantly shows. A. T. Newell says his brother told him he wanted a home; that he desired to bid on these two small tracts; that he had some money, and yet we find W. S. Newell never made any attempt whatsoever to comply with these bids, but, on the contrary, we find from the testimony of Mr. A. T. Newell that he said he had offered to sell these lands to other parties, and named prices less than the sums bid by Mr. W. S. Newell. Taking these facts and circumstances, the relationship of the parties, and the fact that Mr. Newell had procured the 'home tract' to be sold last, how can we escape the conclusion that, while Mr. W. S. Newell made the bids, such bids were made at the instance of Mr. A. T. Newell? Suppose the witnesses say that such was not the...
