Hartley v. Roffe.

• Decision Date: 30 March 1878
• Citation: 12 W.Va. 401
• Court: West Virginia Supreme Court
• Parties: Hartley & Co. v. Roffe.

12 W.Va. 401

Hartley & Co.

v.Roffe.

(Absent, Moore, Judge).

Supreme Court of Appeals of West Virginia.

Decided March 30, 1878.

1.A sale made by a commissioner under a decree of a court of

equity is not an absolute sale, and does not become absolute, until it is confirmed by the court.

2. A greatly inadequate price is generally, when clearly shown,

sufficient cause to set aside such sale.

3. Whether the court will confirm a sale made by a commissioner

under its decree, must in a great measure depend upon the circumstances of each case.

4. It is difficult to lay down any rule applicable to all cases; nor

is it possible to specify all grounds, which will justify the court in withholding its approval.

5. In such a case, if there is reason to believe, that fraud or mis-

take has been committed to the detriment of the owner or purchaser, or that the officer conducting the sale has been guilty of any wrong or breach of duty, to the injury of the parties interested, the court will withhold a confirmation of the sale.

6. A court of equity, acting upon a report of sale, does not exer-

cise an arbitrary, but a sound legal discretion, in the interests of fairness and prudence, and with a great regard to the rights of all concerned.

7. An exception to a report of sale of land by a commissioner,

appointed by decree of a court of equity in these words: 2d. "For other reasons apparent on the face of said report," is too general. An exception to the report of such commissioner "for defects on the face of the report" ought to be so specific, as to direct the mind of the court and the parties in interest to the particular defect or omission, upon which the exception relies, unless the report be so substantially defective on its face, as to require the court of its own motion, in the absence of exceptions, to set aside the report.

8. When a creditor's bill is brought to sell lands of the debtor, and the defendant fails to answer or plead, and decrees in the cause are made and entered on bill taken for confessed, but the defendant appears and files exceptions to the report of sales made by thecommissioner of the court, and the court overrules the exceptions to such report of sales, the Appellate Court will consider and determine the appeal and supersedeas of the debtor as to so much of the action of the court, as relates to said exceptions and the overruling thereof, but will generally dismiss the appeal and supersedeas as improperly allowed as to other decrees in the cause and parts thereof, which were made, and rendered on bill taken for confessed, the appellant not having applied to the circuit court, or the judge thereof in vacation, to reverse or correct the same according to the provisions of the 5th section of chapter 134 of the Code, before applying for and obtaining the appeal and supersedeas as to such decrees and parts thereof, as were made on bill taken for confessed.

An appeal granted upon the petition of Charles L. Rofte, from decrees of the circuit court of the county of Cabell, rendered in a chancery cause in said court, wherein R. H. Hartley & Co. and others were plaintiffs, and said Charles L. Roffe was defendant. A sufficient statement of the case is given in the opinion of the Court.

Hon. C. W. Smith, formerly judge of the circuit court of Cabell county, presided below.

James M. Laidley, for appellant.

J. H. Ferguson and Smith & Kline, for appellees.

Haymond, Judge, delivered the opinion of the Court:

In March, 1869, the plaintiffs filed their bill, in the clerk's office of the circuit court of Cabell cpunty, against the defendant, to subject the lands of the defendant to the payment of a judgment at law, in favor of the plain-tiffs against the defendant, for the sum of $271.47, with interest thereon from the 25th day of June, 1861, and costs of suit. The bill is in form, what is called a creditors' bill, and asks that creditors be convened and an account taken of their debts, and the lands of defendant be sold to pay his debts, including the plaintiff's debts? &c. The bill also avers, that said defendant has no personal estate or property liable to the payment of his debts; that writs of ft. fa, have been issued against him and been returned, "no property found and that the defendant is the owner in fee of a large landed estate in the county of Cabell aforesaid, and also in the county of Lincoln, a number of the tracts and the quantity contained in each are specified. The bill also alleges, that his judgment was docketed in the lien book, in the recorder's office of Cabell county, on the 2d day of February, 1866. An official copy of the plaintiffs' said judgment is filed with the bill, as "exhibit A," from which it appears, that plaintiffs' said judgment against the defendant is a judgment by confession. On the 9th day of August, 1869, the said circuit court made and entered the following decree in the cause, viz:

"The subpoena in this cause having been returned executed on the defendant, C. L. Roffe, by the sheriff of this county, more than two months before the sitting of this court, and he still failing to appear and answer the complainants' bill and exhibits filed at March rules last, the same has therefore been regularly set for hearing and taken for confessed as to him; and now this cause came on this day to be heard upon the complainants' bill and exhibits, the proceedings at rules, and was argued by counsel. On consideration whereof the court doth order, adjudge and decree, that this cause be referred to Joseph S. Miller, a master commissioner of this court, whose duty it shall be under this decree, to take, state and report an account, showing to this court the indebtedness and claims against the defendant, C. L. due by judgments, deeds of trust, or otherwise,

constituting liens on his real estate, showing whom they evidenced, their priorities, if any. He shall also report to the court the number of tracts of land owned by defendant, C. L. Roffe; the character of title thereto, whether legal or equitable; the number of acres in each tract, and their location; whether any liens, and what, if any, are on said land; and other matters deemed pertinent, or that any of the parties may request. And the said commissioner shall publish notice of the time and place of performing the said duties, for four successive weeks prior thereto, in the ' Cabell County Press, 'and some weekly newspaper published in the adjoining county of Mason."

On the 11th day of November, 1869, the court, at the instance of the plaintiffs' counsel, awarded a rule against the defendant, returnable at the next December term of the court, to show cause why he should not be attached for failing to answer the plaintiffs' bill j no further proceedings appear to have been taken in the cause upon said rule. The defendant never answered the plaintiffs' bill, nor pleaded to it in any manner. On the 7th day of January, 1870, the court recommitted the report of commissioner Joseph S. Miller, which had theretofore been filed, with directions to the commissioner, to ascertain what credits, if any, the defendant, Charles L. Roffe, is entitled to, on the indebtedness reported by the commissioner in his said report.

On the 11th day of May, 1870, the said court made another decree in the cause, in which it is recited, that Joseph S. Miller, commissioner of the court, had filed with the papers of the cause, on the 22d of December, 1869, his report, and also a supplemental report, to which no exceptions were filed, and by the said decree it appears, that the cause came on again to be further heard upon the papers theretofore read in the cause, the former orders and decrees had therein and upon the said reports of said commissioner Miller; and the court approved and confirmed the said reports. And the court in and by said decree ascertained, that the defendant was in-debted to the plaintiffs in the sum of $327.64, by reason of their said judgment, and that the same was a lien upon thc real estate of the defendant in the bill and proceedings mentioned, and decreed that the defendant pay to the plaintiffs the said sum of $327.64, with interest thereon from the 12th day of May, 1870, until paid, and their costs expended in the prosecution of this suit, including $30.00 as provided by statute.

And the court in the same decree then ascertained a large number of other debts, due to other creditors by judgment, &c, by the said defendant, and specifies and states the same, &c and decrees, that unless the defendant pay the plaintiffs their said debt with interest thereon, and the costs of this suit, and to the several other persons the amount with interest due thereon, as ascertained by the court, that T. B. Kline, who is appointed a special commissioner for the purpose, do proceed to sell the several tracts of land of the said defendant, in the bill and report of commissioner mentioned, or so much thereof as may be necessary to pay the said several sums of money thereinbefore specified, together with the costs and expenses of this suit, &c. Immediately after the last mentioned part of said decree there is a clause therein in these words, viz: "And by consent of all the parties the defendant has leave to present to and prove before the commissioner, Joseph S. Miller, any credits, to which he may be entitled upon any of the debts hereinbefore mentioned, within sixty days from this date, upon giving to T. B. Kline ten days previous notice thereof; which credits, if any be so proved, are to be allowed him in the further proceedings in this cause; and the said Miller is directed to report any such credits to the next term of this court." The last named decree contains other claims, which I have neither stated in substance nor copied herein, because under the view I decree and all previous decrees, it is un-

necessary.

On the 20th of July, 1870, the said circuit court made

and entered another decree in the cause, in which it is recited, that the cause came on...