George v. Woods

• Decision Date: 03 May 1909
• Docket Number: 13,737
• Citation: 49 So. 147,94 Miss. 268
• Court: Mississippi Supreme Court
• Parties: WILLIAM C. GEORGE v. PINK WOOD

49 So. 147

94 Miss. 268

WILLIAM C. GEORGE v. PINK WOOD

No. 13,737

Supreme Court of Mississippi

May 3, 1909

FROM the chancery court of Leflore county, HON. PERCY BELL Chancellor.

Mrs Wood, appellee, was complainant in the court below and one Bowles and others were defendants there. The case has been in the supreme court several times. See Bowles v. Wood, 90 Miss. 742, the opinion there reported showing that the case was then upon its fourth appeal. See also Wood v Bowles, 92 Miss. 843, 46 So. 414, another branch of the same case. The proceeding was one for partition of lands between cotenants and an accounting for rents. The facts are stated in the opinion of the court. George, the appellant was the purchaser at the judicial sale, the confirmation of which was involved.

Affirmed and remanded.

Tim E. Cooper and Hallam & Cooper, for appellants.

This record presents for decision three questions, first, the power of the chancellor to confirm the sale to George, in vacation; second, the effect which the reversal of the decree by the supreme court had upon the rights of a bona fide purchaser at the commissioner's sale; third, the power of the chancellor to set aside his decree confirming the sale in vacation at the second term after such confirmation.

The only objections made by Bowles to the confirmation of the sale were, first, a lack of bidders; and second, inadequacy of price. It is not contended anywhere that the sale was not made in perfect good faith, or that fraud or mistake of any description had anything to do with the lack of bidders, or caused an inadequacy of price. Then, was the mere filing of the above objections such a "contest" as is contemplated by the statute? Evidently the learned chancellor did not think so. It is almost universally held that mere inadequacy of price, or a lack of bidders, unless caused by fraud or mistake, are not sufficient grounds for setting aside a judicial sale. The objections filed present no other grounds, and are on their face insufficient to warrant the setting aside of such sale. If this be true, then an objection on the ground of inadequacy of price and lack of bidders, if true, is not sufficient ground to warrant the chancellor in refusing to confirm the sale in vacation. The objections filed present no contest which the law recognizes.

To hold that any sort of objection to the confirmation of a judicial sale constitutes a contest within the meaning of the statute, would, it seems to us, be contrary to its purpose. A person then might object to the confirmation of a judicial sale on the ground that it would strip him of all his property, save his homestead, and leave him penniless, and the chancellor would be without power to confirm the sale in vacation. Certainly such a result was never contemplated. In this case it is not even shown by any sort of evidence that there was in fact a lack of bidders, or that the price realized at the sale was inadequate. But even if there had been proof of these facts, the court, under construction of the statute, would have been justified in refusing to hear the evidence; for if the alleged facts were proved, the sale must have been confirmed. The statute does not contemplate a mere protest, but refers to some legal objection which if proved would in law prevent confirmation.

In the absence of any showing of fraud or irregularity, mere inadequacy of price will not justify the court in setting aside a judicial sale. Nix v. Draughon, 56 Ark. 240, 19 S.W. 669; Conway v. Johns, 14 Colo. 30, 23 P. 170; O'Callaghan v. O'Callaghan, 91 Ill. 228; Sowle v. Champion, 16 Ind. 165; Passmore v. Moore (Ky.), 22 S.W. 325; House v. Walker, 4 Md. Ch. 62; Wagner v. Phillips, 51 Mo. 117; Marlett v. Warwick, 18 N.J.Eq. 108; White v. Floyd (S. C.), 1 Speers, Eq. 351; Myers v. James, 72 Tenn. (4 Lea), 370; McKennon v. McGowan (Sup.), 11 S.W. 532; Harmon v. Copenhaven, 89 Va. 836, 17 S.E. 482.

There is another question with reference to the construction of this statute which deserves mention. By reference to Laws 1900, p. 135, ch. 95, it will be seen that the law just prior to the adoption of the Code of 1906 provided that reports of sales or leases might be made to the chancellor, and by him confirmed in vacation, and this whether there was a contest or not. Nothing is said in the laws of 1900 about a contest, or about a report of confirmation of partition in kind. The legislature, in adopting the Code of 1906, incorporated into the Law of 1900 these words: "or of partition in kind, where there is no contest," so that section 657 of the Code of 1906, reads as follows:

"Reports of sales or leases or partition in kind, where there is no contest, may be made in vacation by the chancellor," and upon five days' notice confirmed, etc.

The court will observe that there is a comma after the words "partition in kind." The point we wish to urge is that the words in quotation, "or of partition in kind, where there is no contest" being an innovation in the law as it formerly stood, the word "contest" refers only to the reports of partitions in kind, and does not refer back to the words "report of sales or leases," and that the comma in section 657, Code 1906, is misplaced and should follow the word "leases" instead of the word "kind." The court will look to the intent of the legislature in construing statutes, and if the punctuation would seem to run counter to the evident intent of the statute the punctuation will be disregarded. Under the construction of the statute here contended for, the chancellor had power to confirm the sale of the commissioner in vacation, and this notwithstanding the objection to the confirmation filed by the appellee.

"In construing a statute, the intention of the legislature should be followed wherever it can be discovered, although the construction seems contrary to the letter of the statute." Griswold v. National Insurance Co., 3 Cow. 89; Crocker v. Crane, 21 Wend. 21, cited in Eskridge v. McGruder, 45 Miss. 294; Fitzgerald v. Rees, 67 Miss. 473, 7 So. 341; Earhart v. State, 67 Miss. 325, 7 So. 347.

S. R. Coleman and McWillie & Thompson, for appellees.

The pivotal point in this case seems to be whether or not the confirmation of the sale to W. C. George was void, for if it was void there can be no doubt about the authority of the court to disaffirm the sale on the reversal of the decree under which it was made. Until confirmation the sale is in fieri and under the control of the court, and when it is made apparent by the result of an appeal that the decree directing it was erroneous as for instance where the property was decreed to be sold and was in fact sold to pay $ 10,000 when only $ 100 was due, clearly a new sale should be ordered. Title does not pass in such cases until the sale is confirmed and a void confirmation gives the purchaser no rights, his subsequent payment of the purchase money being entirely voluntary and like the commissioner's conveyance to him, if one be made, wholly without effect.

Of course a decree of confirmation that the chancellor was without power to make is a nullity, and the record must in such case be treated as showing no confirmation whatever. 17 Am. & Eng. Ency. of Law (2d ed.), 989, 990; Brame & Alexander's Dig. Title, Judicial Sales, VI. Confirmation, p. 689. The pretended confirmation of the sale to appellant, George, was made by the chancellor in vacation under section 657, Code of 1906, which only authorized confirmation in vacation where there was no contest; but in this case there was a contest.

The appellant contends that under the section in question, which reads that "Reports of sales or leases or of partition in kind, where there is no contest," may be made and confirmed in vacation, only partitions in kind are affected by the qualification as to the existence of a contest. This is a forced construction of the statute, against its terms, and against its punctuation. No reason whatever is suggested why there should be a different rule in the case of partitions in kind, and it is clear the legislature did not intend to make one.

The appellant also argues that because the formal objections in writing to confirmation were not, as he claims, meritorious, there was no contest at all. This position is clearly unsound. The primary meaning of the verb "to contest" is to make a subject of dispute, contention or litigation; to call in question, to controvert, to oppose, to dispute. It is further defined as meaning, to defend, as a suit or other judicial proceeding; to dispute or resist, as a claim, by course of law; to litigate. The noun "contest" denotes a contention, strife, struggle, litigation. 9 Cyc. 70, 7 Am. & Eng. Ency. of Law (2d ed.), 78. It has been held that a claim against an estate may be a "contested" one under the Georgia statute although the executor sees it to be beyond doubt as to its legality and one that no court would hold to be of doubtful obligation. Maynard v. Cleveland, 76 Ga. 71.

The statute was manifestly intended to give jurisdiction to confirm in vacation only in those cases where the parties were satisfied with the sale or too indifferent to object. The very short notice provided for only five days before the hearing indicates this quite plainly, for in case of the trial of objections the parties would in nearly all instances require more time than five days for preparation, the getting up of their evidence.

But the appellant is mistaken even in the assumption that the objections filed were insufficient because inadequacy of price unaccompanied by fraud is no ground for...