Gibbs v. Ewing

• Citation: 94 Fla. 236,113 So. 730
• Parties: GIBBS et al. v. EWING et al.
• Decision Date: 14 July 1927
• Court: United States State Supreme Court of Florida

113 So. 730

94 Fla. 236

GIBBS et al. v. EWING et al.

Florida Supreme Court, Division A.

July 14, 1927

Suit by H. L. Ewing as trustee, and the Melbourne State Bank, against the Florida Citrus Groves Company and others, to construe a trust deed and for other relief, in which Glenn Henley intervened to oppose a motion to vacate an order of sale. From an order denying the motion of H. L. Gibbs and others to set aside an order of sale and an order confirming the sale and to cancel a deed to the purchaser, the applicants appeal.

Appeal dismissed.

Syllabus by the Court

SYLLABUS

Purchaser of realty at master's sale having deed is necessary party to proceedings to set saide orders of sale and confirmation on failure to make purchaser at master's sale who has deed, party, in absence of voluntary appearance, appeal in proceeding to vacate orders of sale and confirmation will be dismissed. The purchaser at a master's sale of real estate, to whom a deed has been esecuted and the sale confirmed, is a mecessary party to all proceedings instituted to set aside or vacate the orders of sale and of confirmation, and is a necessary party to an appeal taken in such proceeding, and where he has not been made such a party and has not voluntarily appeared in the appellate court, the appeal will be dismissed.

Nominal parties, not affected by decree in proceeding to vacate orders of sale and confirmation, are not necessary parties to appeal. Mere nomianl parties who have no interest that can be affected by the judgment or decree are not considered necessary parties to an appeal from such judgment or decree.

Purchaser whose personal interest was not denied should be made party to proceeding to vacate decrees of sale and confirmation and cancel master's deed and to appeal. Where in a motion to vacate an interlocutory decree for the sale of lands, and the decree confirming such sale, it is alleged that the purchaser at such sale was acting for the use and benefit of the complainant, but there was no allegation negativing the fact that such purchaser was also interested personally, nor otherwise showing that he retained no interest that could be affected by such interlocutory decrees, such purchaser should be made a party to such proceedings for the vacating of such decrees, and the cancellation of the master's deed, as well as a party to an appeal taken from the order denying such motion.

Generally after time for appeal, party may not appeal from unfavorable decision on motion to vacate decree for irregularity; party free from laches may appeal from denial of motion after period for appeal to vacate interlocutory order and decree for lack of jurisdiction or of notice (Rev. Gen. St. 1920, §§ 3164, 3165; chancery rule 90). As a general rule, after the period within which an appeal could be taken from a decree has elapsed, a party cannot regain his lost opportunity by appealing from an unfavorable decision on his motion to vacate such decree for mere irregularity; but this rule does not prevent a party, who is free from laches, from endeavoring, by motion, though made after the period for appealing has expired, to vacate an interlocutory order or decree upon the ground that the court was without jurisdiction, or that such order or decree was fraudulently procured without notice to the movant, and then appealing from an adverse ruling upon such motion.

Generally, interlocutory orders and decrees are subject to modification or vacation until final decree; to set aside interlocutory orders or decrees for judicial sale, where rights of innocent third parties intervene, person must set forth sufficient grounds and negative laches. As a general rule, interlocutory orders and decrees remain under the control of, and subject to modification or vacation by, the chancellor, until final decree; but where such interlocutory orders and decrees are in some respects final in their nature, such as orders for judicial sales of part or all of the subject-matter of the suit, made during the pendency of the cause, upon the basis of which the right of innocent third parties have been created, the rule as to the grounds for such motion would be more strict than ordinarily, and would not only have to set forth grounds recognized in equity as sufficient, but would also be required to negative laches or neglect.

Reasonable diligence, sufficient grounds, and good faith are required to set aside judicial sale; whether party has exercised reasonable diligence to set aside judicial sale depends on circumstances. While no rigid rule has been laid down prescribing the time within which a motion upon proper grounds to vacate an order or decree of sale should be made, reasonable diligence and a show of sufficient grounds, as well as good faith, should be rigorously exacted from parties seeking the disturbance of judicial sales and the destruction of titles derived from them; and whether there has been reasonable diligence must depend upon the particular circumstances, whether they are such as may have induced inaction or ought to have quickened vigilance and action.

Inadequacy of price shocking conscience may cause vacation of judicial sale, especially when connected with mistake, accident, surprise, misconduct, fraud, or irregularity. While mere inadequacy of price may not alone be sufficient in itself to justify setting aside a judicial sale, if the inadequacy be so gross as to shock the conscience, it may afford cause for vacating the sale, especially when connected with, or shown to result from, mistake, accident, surprise, misconduct, fraud, or irregularity.

Interlocutory decree of sale should not be vacated merely to let in defense on merits; to set aside interlocutory judicial sale, facts must show deceit, surprise, or irregularity in obtaining decree, and defendant acted bona fide with reasonable diligence and has meritorious defense. A motion to open or vacate an interlocutory decree of sale, made during the progress of a cause, should not be granted upon a mere desire to let in a defense upon the merits. The facts established must show deceit, surprise, or irregularity in obtaining the decree; that the defendant had acted bona fide and with reasonable diligence and has a meritorious defense, and the facts constituting such defense must distinctly and satisfactorily appear.

Defendant may either move or petition to set aside judicial sale before or after termination of cause; motion to set aside judicial sale, alleging nothing had been done for six years, when petition for order for sale was filed, held sufficient (rule 1 of chancery practice). In seeking upon sufficient grounds and within such time as the principles of equity recognize as permissible and just under all the circumstances of the case, to vacate and set aside an interlocutory decree of sale, a party defendant in the cause may proceed by either motion or petition, whether made before or after the termination of the cause; the remedial scope of motions having been considerably enlarged under modern practice.

Appeal from Circuit Court, Brevard County; W. W. Wright, judge.

COUNSEL

Shepard & Wahl, of Cocoa, for appellants.

David Peel, of Melbourne, for appellees.

OPINION

BROWN J.

This matter is before us on an appeal, and a motion to dismiss such appeal from an order made by the chancellor in the court below denying the motion of appellants to vacate and set aside a former order of the court ordering the sale of certain lands and a subsequent order confirming the sale of said lands and to cancel the deed to the purchaser at said sale. The order for the sale of the land was made on October 8, 1923, and the order of confirmation on November 5, 1923. The motion to vacate and set aside such orders was not made until April 16, 1926, about 2 1/2 years after the making of the orders attacked. The movants, appellants here, were and are residents of the state of Illinois.

It appears from the motion to vacate that in December, 1914, the Florida Citrus Groves Company, a corporation, conveyed to H. L. Ewing, trustee, approximately 470 acres of land, which included 50 acres of well-developed citrus groves land upon which there had been set out a grapefruit grove. The balance of the land was practically wild and unimproved. Ewing as trustee was to hold the land in trust for the creditors of the Florida Citrus Groves Company. This deed did not set out the terms of the trust. Later, in the same month, the Florida Citrus Groves Company made another deed to H. L. Ewing, trustee, to the 50 acres set out in grapefruit, setting forth the terms of the trust, which was for the security of the holders of certain certificates issued and to be issued under the terms of said deed. The Florida Citrus Groves Company thereafter became indebted to Bills, Ewing & Nehf, private bankers, of which bank said H. L. Ewing, trustee, was president. This firm by incorporation afterward became the Melbourne State Bank.

In May 1916, Ewing as trustee and the Melbourne State Bank filed a bill against the Florida Citrus Groves Company and these appellants and others for the interpretation of Ewing's responsibilities as trustee under the deed of December 5, 1914, and to declare the Melbourne State Bank a preferred creditor of the Florida Citrus Groves Company, and to settle priorities between creditors and preferred stockholders, and for the sale of the entire 470 acres. The bill alleged that the defendant corporation had agreed that the indebtedness to the bank was a preferred claim and entitled to priority. The appellants employed as their solicitor Rufus M. Robbins, who associated with him Jones & Jones. They demurred to the bill. No action was taken on the demurrer. An amended bill was filed without notice in April, 1917. ...