In re Receivership of Great Western Beet Sugar Co.

CourtIdaho Supreme Court
Writing for the CourtDAVIS, District Judge.
Citation22 Idaho 328,125 P. 799
PartiesIn the Matter of the Receivership of GREAT WESTERN BEET SUGAR COMPANY. O. E. CANNON, Receiver, Respondent, v. HENRY HEWITT, Jr., a Lienholder, Appellant
Decision Date15 July 1912

125 P. 799

22 Idaho 328

In the Matter of the Receivership of GREAT WESTERN BEET SUGAR COMPANY. O. E. CANNON, Receiver, Respondent,
v.

HENRY HEWITT, Jr., a Lienholder, Appellant

Supreme Court of Idaho

July 15, 1912


RECEIVER-IRREGULARITIES IN JUDICIAL SALE-DISCRETION OF THE COURT-RIGHTS OF WOULD-BE PURCHASER.

(Syllabus by the reporter.)

1. Where a public sale has been made by a receiver, in compliance with an order of the court, of property in his hands as such receiver, under notices requiring a cash payment on the day of the sale, and [22 Idaho 329] a bid is made within the terms of the sale, but the intending purchaser is unable to secure sufficient funds immediately with which to make such cash payment, it is a reasonable exercise of discretion on the part of the district judge to extend the time within which such payment shall be made, where no injury is done to anyone by failure of the purchaser to pay at once the sum due on his bid.

2. A trial judge in equity proceedings, exercising authority over a sale of property in the hands of a receiver appointed by such court, has discretionary power to modify all orders affecting such sale, by subsequent orders.

3. At a public sale of property by a receiver, the mere failure of a successful bidder to immediately make the payment on his bid required by the terms of the sale, does not destroy the right of the receiver to demand or accept such payment later, where the rights of others are not injuriously affected by such delay.

4. In order to justify setting aside a judicial sale on behalf of one attacking it on the ground of alleged irregularities in the conduct of such sale, the person attacking such sale should allege and establish injury to himself resulting from the irregularities complained of.

5. One who has acquiesced in an irregularity in the conduct of a judicial sale at the time thereof, and does not show affirmatively that he has been injured thereby, should not afterward be heard to question its validity on the ground of such irregularity.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.

Action for confirmation of receiver's sale. Lienholder appeals from order of the trial court affirming such sale. Affirmed.

Judgment of the lower court affirmed, with costs to respondent.

J. B. Eldridge and Chas. F. Reddoch, for Appellant.

The order of the court required a public sale, and no deviation from the terms of a decree is more obnoxious to objection than selling at private sale when the order directs a public sale. (South Baltimore Brick & Tile Co. v. Kirby, 89 Md. 52, 42 A. 913.)

The receiver had no authority or power in the matter other than to sell to the highest bidder who paid twenty-five per cent down on the day of sale. The attempt to make a sale to a man who paid down nothing is wholly void. (Ackerman v. Ackerman, 50 Neb. 54, 69 N.W. 388; Zantzinger v. Pole, 1 Dall. (U.S.) 419, 1 L.Ed. 204; Porter v. Graves, 104 U.S. 171, 26 L.Ed. 691; Camden v. Mayhew, 129 U.S. 73, 9 S.Ct. 246, 32 L.Ed. 608; Walker v. McLoud, 204 U.S. 299, 27 S.Ct. 293, 51 L.Ed. 495.)

The pretended sale by the receiver was not a sale at public auction as directed by the order, but in fact was simply a private sale, and is therefore void. (Hutchinson v. Cassidy, 46 Mo. 431; Fambro v. Gantt, 12 Ala. 298; Neal v. Pattern, 40 Ga. 363.)

Judicial sales must be made in accordance with the terms of the decree ordering and directing the sale. (Morrison v. Lincoln Savings Bank, 1 Neb. (Unof.) 449, 96 N.W. 230; Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 85 N.W. 695; Patterson v. Patterson, 207 Pa. 252, 56 A. 442; Mason v. Hubner, 104 Md. 534, 65 A. 367; Musgrave v. Parrish (Ky.), 12 S.W. 709; Cofer v. Miller, 7 Bush (Ky.), 545; Bethel v. Bethel, 6 Bush (Ky.), 65, 99 Am. Dec. 655.)

The court had no authority after the sale to modify any of its terms, or extend to the purchaser any consideration whatever, other than to require that he comply with the terms of his bid. (Ohio L. Ins. Co. v. Goodin, 10 Ohio St. 557; Green v. State Bank, 9 Neb. 165, 2 N.W. 228; Benz v. Hines & Tarr, 3 Kan. 390, 89 Am. Dec. 594; Kinnear & Willis v. Lee & Reynolds, 28 Md. 488; Fitch & Co. v. Minshall, 15 Neb. 328, 18 N.W. 80.)

The record on its face shows collusion between the receiver and the purchaser, and should be set aside. (Dilley v. Jasper Lumber Co., 103 Tex. 22, 122 S.W. 255.)

Sullivan & Sullivan and R. Garland Draper, for Respondent.

The court can modify or change terms of sale or confirm unauthorized changes by receiver, and is vested with control of and wide discretion in judicial sales. (Fid. Ins. Trust & Safe Dep. Co. v. Roanoke Iron Co., 84 F. 752; Freeman, Void Jud. Sales, pp. 88, 89; Tobin v. Portland Mills, 42 Ore. 117, 68 P. 750; Rochat v. Gee, 137 Cal. 497, 70 P. 479; Pewabic Min. Co. v. Mason, 145 U.S. 349, 12 S.Ct. 887, 36 L.Ed. 732; Magann v. Segal, 92 F. 257, 34 C. C. A. 323; 24 Cyc. 26; Fowler v. Krutz, 54 Kan. 622, 38 P. 809.)

Even though there have been irregularities, if a court can give a good title and it is to the interest of the parties to confirm the sale, it will be confirmed, and the purchaser compelled to complete his purchase. (24 Cyc. 34; Swan v. Newman, 3 Head (Tenn.), 288.)

To justify the interference of the court, there must be fraud, mistake, or some accident by which the rights of the parties have been affected. (2 Beach's Mod. Eq. Prac., sec. 821, citing many cases.)

A judicial sale will not be set aside for irregularities or errors not prejudicial to the party complaining. (Miller v. Lanham, 35 Neb. 886, 53 N.W. 1010; 17 Am. & Eng. Ency. Law, 999; Meeker v. Evans, 25 Ill. 322; Bean v. Meguiar, 20 Ky. L. R. 885, 47 S.W. 771; McKnight v. Jacob, 5 Ky. L. R. 176; Wrightson v. Kline, 5 Ky. L. R. 57; Stryker v. Storm, 1 Abb. Pr., N. S. (N. Y.), 424.)

The person attacking the sale must be able to show injury resulting to him therefrom. (17 Am. & Eng. Ency. Law, 995, 996; Gilmer v. Nicholson, 21 La. Ann. 589; Stockton v. Downey, 6 La. Ann. 581; Brackman v. Allison, 1 Ky. L. R. 278; Godchaux v. Morris, 121 F. 485, 57 C. C. A. 434.)

One who has acquiesced in an irregularity in the conduct of the sale cannot afterward question...

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9 practice notes
  • Ex parte Moore, No. 3352.
    • United States
    • Court of Appeals of South Carolina
    • June 4, 2001
    ...a court ordering the foreclosure sale may amend its own order. Thus, for example, in In re Receivership of Great Western Beet Sugar Co., 22 Idaho 328, 125 P. 799 (1912), the receiver auctioning property was given leave to extend the time period for the successful bidder to tender his twenty......
  • Gibbs v. Claar, 6479
    • United States
    • United States State Supreme Court of Idaho
    • January 18, 1938
    ...to other bidders, and so altering order of May, 1935, was within the discretion of the lower court. (In re Great Western Sugar Beet Co., 22 Idaho 328, 125 P. 799, 83 L. R. A., N. S., 671; 16 R. C. L. 52, sec. 37; Saunders v. Stultz, 189 Iowa 1090, 177 N.W. 516, 11 A. L. R. 394; In re Securi......
  • Citicorp Mortg., Inc. v. Burgos, No. 14717
    • United States
    • Supreme Court of Connecticut
    • August 10, 1993
    ...to demonstrate "injury to himself resulting from the irregularity complained of. In re Receivership of Great Western Beet Sugar Co., [22 Idaho 328, 334, 125 P. 799 (1912).]" Id. Similarly, in Raymond v. Gilman, supra, 111 Conn. at 614-15, 151 A. 248, this court recognized its power to set a......
  • Harrentsian v. Hill, Docket No. 43627
    • United States
    • United States State Supreme Court of Idaho
    • December 9, 2016
    ...has a wide discretion in exercising authority necessary to protect all interests...." In re Receivership of Great W. Beet Sugar Co. , 22 Idaho 328, 333, 125 P. 799, 801 (1912).This Court employs a three part test to determine whether a district court abused its discretion. Here, Appellant f......
  • Request a trial to view additional results
9 cases
  • Ex parte Moore, No. 3352.
    • United States
    • Court of Appeals of South Carolina
    • June 4, 2001
    ...a court ordering the foreclosure sale may amend its own order. Thus, for example, in In re Receivership of Great Western Beet Sugar Co., 22 Idaho 328, 125 P. 799 (1912), the receiver auctioning property was given leave to extend the time period for the successful bidder to tender his twenty......
  • Gibbs v. Claar, 6479
    • United States
    • United States State Supreme Court of Idaho
    • January 18, 1938
    ...to other bidders, and so altering order of May, 1935, was within the discretion of the lower court. (In re Great Western Sugar Beet Co., 22 Idaho 328, 125 P. 799, 83 L. R. A., N. S., 671; 16 R. C. L. 52, sec. 37; Saunders v. Stultz, 189 Iowa 1090, 177 N.W. 516, 11 A. L. R. 394; In re Securi......
  • Citicorp Mortg., Inc. v. Burgos, No. 14717
    • United States
    • Supreme Court of Connecticut
    • August 10, 1993
    ...to demonstrate "injury to himself resulting from the irregularity complained of. In re Receivership of Great Western Beet Sugar Co., [22 Idaho 328, 334, 125 P. 799 (1912).]" Id. Similarly, in Raymond v. Gilman, supra, 111 Conn. at 614-15, 151 A. 248, this court recognized its power to set a......
  • Harrentsian v. Hill, Docket No. 43627
    • United States
    • United States State Supreme Court of Idaho
    • December 9, 2016
    ...has a wide discretion in exercising authority necessary to protect all interests...." In re Receivership of Great W. Beet Sugar Co. , 22 Idaho 328, 333, 125 P. 799, 801 (1912).This Court employs a three part test to determine whether a district court abused its discretion. Here, Appellant f......
  • Request a trial to view additional results

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