Hileeary v. Thompson

• Decision Date: 10 September 1877
• Citation: 11 W.Va. 113
• Court: West Virginia Supreme Court
• Parties: Hileeary & Johnson, et al. v. Thompson, et al.(Absent, Gkeen, President).

11 W.Va. 113

Hileeary & Johnson, et al.

v.Thompson, et al.

(Absent, Gkeen, President).

Supreme Court of Appeals of West Virginia.

Decided September 10, 1877.

1. Any mistake or misunderstanding between the persons con-

ducting a judicial sale, and intended bidders or parties in in--terest, by which interests are prejudiced without the fault of the injured party or parties, is sufficient cause for refusing confirmation and ordering a re-sale.

2. An auctioneer or crier making a sale. cannot properly act for

himself, or any other person in bidding for the property.

3. The court in acting upon a report of sale does not exercise an

arbitrary, but a sound legal discretion in the interest of fairness and prudence, and with a just regard to the rights of all concerned.

4. Affidavits and depositions, not referred to in any decree or

order in a chancery suit, are no part of the record.

5. At a judicial sale, E. became the purchaser of a tract of one

hundred acres of land at $26.00 per acre; affidavits in the cause, which were uncontradicted, showed that the land was worth at least $40.00 per acre; there was a misunderstanding, as to whether or not the growing crop on the land was being sold with it; the auctioneer either bid himself, or received sham bids. Held:

That under these circumstances the sale was invalid and ought not to have been confirmed.

Upon the petition of John A. Thompson, one of the defendants below, an appeal and supersedeas were allowed to so much of a decree of the circuit court of Jef- ferson county, rendered on the 16th day of November 1875, in a cause in chancery, in said court then pending, wherein Hilleary & Johnson and others were plaintiffs, and John A. Thompson and others were defendants, as confirmed a sale of one hundred acres of land, made by special commissioners in said cause, and as disposed of the proceeds thereof, and as otherwise related to said sale and the confirmation thereof.

The Hon. John Blair Hoge, Judge of the third judicial circuit, rendered the decree complained of.

Johnson, Judge, who delivered the opinion of'the. Court, states the case as follows:

John J. Hilleary and Henry Johnson, partners as Hiileary & Johnson, and John J. Hiileary, William N. C. Wilson and Henry Johnson, partners as Wilson & Johnson, brought a chancery suit in the circuit court of Jefferson county against John A. Thompson, the National Bank of Martinsburg and others, for the purpose of subjecting the real estate of the defendant, John A. Thompson, to the liens thereon, some of which were by deed of trust, but the greater part were judgment liens. The cause, was referred to commissioners to ascertain, the liens and their priorities, &c. After the commissioners had ascertained the liens and their priorities, and the 'value and annual rental value of the lands of the defendant, Thompson, a decree was on the 10th day of November" 1874, rendered for the sale of the defendant, Thompson's lands. The special commissioners named in the decree offered the property for sale under the terms thereof, on the 23d day of March 1875, and at the sale John W. Roberts, who held a deed of trust on one of the tracts of land of the defendant, Thompson, known as the "new ground" tract, for a considerable sum of money became the purchaser of the said tract, containing one hundred acres, at the price of $26.00 per acre. This was the only tract for which a bid was made at that time. The commissioners reported their proceedings to the court; and the confirmation of the sale was resisted by defend-" ant, Thompson, on the ground of inadequacy of price; and the court sustained the exception to the report of sale, and refused to confirm the same; and thereupon a decree was again entered directing the same special commissioners to again sell the lands mentioned in the former decree. This they afterwards did; and the same tract of one hundred acres, known as the "new ground" tract was again purchased by the same man at the same price. No offer being made for any of the other tracts of land, they were withdrawn; and the commissioners again reported their proceedings to the court. The report of sale was excepted to, and the confirmation thereof resisted, and a motion made to set aside said sale by the defendant Thompson on the ground of inadequacy of price; and said motion was supported by the affidavits of Boley, Fey, Gordon, Reiley, Showalter and W. E. Anderson, as stated by the decree. All the affidavits save those of Gordon and Anderson relate to the inadequacy of price; one of which says the land was worth |50.00 per acre, and the other three that it was worth at least $40.00 per acre; and no counter affidavits are filed. Other affidavits appear in the printed record, but they are not properly a part thereof, as they are not recognized by any decree in the cause. The affidavit of Gordon shows, that at the time of the sale there was a crop of corn growing on about sixty acres of the land, which was worth about $328.00. The final decree confirming the sale was in this language: "And it appearing to the court from the statement of the special commissioners, that at the sale of said parcel of land nothing was said concerning the landlord's share of the corn crop growing thereon; on consideration thereof the court doth overrule said motion (to set aside the sale), doth confirm said report of sale, provided the purchaser, John "W. Roberts, will release any claim to the said landlord's share of said crop, to wdiich condition said Roberts consents, &c."

And the decree further provides, "It is further ordered that the tenant of said parcel of one hundred acres of land do account to said sheriff (who by the same decree had been substituted for the commissioners who made the sale) for the landlord's share of the crops lately grown on the said land."

It is presumed that the "landlord" referred to was the debtor and defendant, John A. Thompson.

The affidavit of W. E. Anderson, which was also read by the court in connection with said motion, shows that he was the auctioneer who cried the said sale for said commissioners, and in said affidavit he says, "that for the tract of land, known in the proceedings in said cause as ' the new ground' tract, and which was knocked down to J. W. Roberts, there was no competing bidding for the said tract, for several bids anterior to that at which the sale was made to the said Roberts at $26.00 per acre. The defendant filed his petition for an appeal from and supersedeas to said decree; and the following order was made by one of the judges of this Court in vacation, in which he limits the appeal and supersedeas, as follows: "I do hereby grant and allow to the petitioner, John A. Thompson, an appeal and supersedeas to so much only of the decree of the circuit court of the county of Jefferson, rendered in the cause in said petition mentioned on the 16th day of November 1875, as confirms the sale of the one hundred acres of land made by special commissioners, Win. H Travers, Geo. Baylor and Joseph Trapnell, to John W. Roberts at the price of $26.00 per acre, and as disposes of the proceeds of the sale thereof, and as otherwise relates to said sale and confirmation."

Wm. H. Travers, for appellant, referred to the following a: u::0:u^.c'...;

Kyle v. Tail's adm'r, 6 Gratt. 44; Pecks v. Chambers, 8 W. Va. 216; Brock v. Bice, 27 Gratt. 815; Rorer on Judicial Sales, 44, 57; Kable v. Mitchell, 9 W. Va. 492; Blossom v. Railroad Co., 3 Wall. 196, Baylor & Wilson, for appellees, referred to the following authorities:

Crawford v. Weller, 23 Gratt. 836, as explanatory of Kyle v. Tail's adm'r in 6 Gratt.; Poague v. Greenlee's'...