Kable v. Mitchell
| Decision Date | 11 September 1876 |
| Citation | 9 W.Va. 492 |
| Parties | KABLE v. MITCHELL ET ALS. |
| Court | West Virginia Supreme Court |
[a1]GREEN, JUDGE absent.
1. In sales made by commissioners under decrees, and, orders of a court of equity, the purchasers who have bid off the property, and paid their deposits in good faith, are considered as having inchoate rights, which entitle them to a hearing, upon the question, whether, the sale shall be set aside. And if the court errs, by setting aside the sale improperly, they have the right to carry the question by appeal to a higher tribunal.
2. A sale by commissioners made under a decree of a court of equity, is not an absolute sale in the State of West Virginia, and does not become absolute until it is confirmed by the court.
3. The court may, in the exercise of a sound discretion, either affirm, or set aside, the sale, where from the facts evidence, and circumstances before it, it appears clearly that the sale was made at a greatly inadequate price, and the court may solve the question upon affidavits, or depositions in connection with the fact that a greatly larger price is offered to the court for the land, and, secured or offered to be secured, or, it may set the sale aside upon any evidence or fact, or facts before it, which clearly shows that the land sold at a greatly inadequate price.
4. There is no inflexible rule in this State, fixing any specific amount of per cent. required to be offered in advance of the last bid made at the sale, to authorize the court to set aside the sale; the amount of per cent. that should be required in such case, must, to a very great extent, depend upon the amount of the last bid, and the circumstances of the case. Each case should be determined according to its merits.
5. The offering to the court of a large amount in advance of the price bid, to be secured, either by the amount offered into court or giving bond with good security as was done in this case, is generally the very best evidence of the great inadequacy of price bid at the sale. And the offer in this case being $11.52 1/2 per acre in advance of the sale bid was sufficiently large to justify the court in setting aside the sale made by the commissioners, the tract of land containing about one hundred and one acres.
6. The bid made by the purchaser at this sale must be considered as his offer to the court through its commissioners, and in making it, he agrees to be bound thereby if it is accepted and approved by the court, and it is discretionary with the court whether it will accept the bid and confirm the sale or set it aside. But this discretion is not an arbitrary one--it should be correctly exercised, and is liable to review by an Appellate Court in a proper case.
7. The discretion which the court may exercise in such cases will not authorize it to set aside the sale without sufficient cause, and a greatly inadequate price is, among other things a sufficient cause.
8. When the circuit court has disapproved, and set aside, such sale made by its own commissioners, the Appellate Court should not disturb the action of the circuit court, unless, it plainly appears that there is error to the prejudice of the appellant.
Upon an appeal from the decree of the circuit court of Jefferson county, rendered on the first day of November, 1873, in a cause therein pending, in which Leonard Sadler's administrator was complainant, and Francis W. Drew et al. were defendants, the said decree being rendered upon a motion made by Mitchell to set aside a sale of land made by the commissioners of said court.
The appeal was granted on the petition of said Kable, the purchaser at the sale.
The facts of the case fully appear in the opinion of Haymond, President.
Hon. J. W. F. Allen, Judge of the fourth circuit, presided at the trial below.
Where the circuit court has disapproved and set aside a sale made by its own commissioners, the appellate court should not disturb the action of the circuit court unless it plainly appears that there is error to the prejudice of the appellant.
Andrew Hunter and J. M. Mason for appellant.
Joseph Trapnell for appellee.
HAYMOND, PRESIDENT:
Prior to 1870, Nathan S. White, administrator of Leonard Sadler, deceased, filed his bill in the circuit court of Jefferson county, against Francis W. Drew and others, praying for the sale of the lands of said Drew, situate in the county of Jefferson, to satisfy debts secured by deeds of trust upon a part of said lands, and also judgment liens against said lands, which were alleged to belong to the estate of said decedent. Subsequently, and on the twenty-ninth day of October, 1867, such proceedings were had in said cause, that the cause was referred to a master commissioner of the court, with instructions, among other things, to ascertain and report: Afterwards the master commissioner made and filed his report in the cause, in which he reported a number of deeds of trust and judgment liens existing against the lands of said Drew, due from him to sundry persons, among others, the plaintiff.
In the said decree of 1867, the court, by and with the consent of said Drew, decreed the sale of the following lands of said Drew, viz: one tract of sixty-six acres, one rood, and twenty-seven perches; one tract of twenty acres, and one tract of fourteen acres, one rood, and twenty-five perches, amounting in the whole to one hundred acres, three roods, and twelve perches, they being the parcels of land conveyed by deed of trust, of date June first, 1858, to Nathan S. White and Lawson Betts, by the said Drew and his wife, for the payment of debts. Isaac Fouke and Charles J. Faulkner were appointed commissioners to make said sale. Subsequently, said commissioners made their reports of sale under said decree, and the court afterwards, on the thirteenth day of June, 1873, among other things, decreed, in said cause, that Isaac Fouke, Joseph Trapnell, Thomas C. Green, and Charles J. Faulkner, who were appointed special commissioners for the purpose, should sell the tract, or parcel, of ninety-nine acres, adjacent to Charlestown, upon which said Drew resided, to pay said liens not before paid, or provided for. Afterwards, the said special commissioners made report to the court, that, among other things, they had offered said last named tract, or parcel, of land, for sale at public auction, in front of the courthouse door of said county, upon the terms prescribed in said last named decree, said sale to be subject to survey; that, at said sale, William H. Kable, being the highest bidder, said property was knocked down to him at the price of $115.25 per acre. They further reported to the court, that said tract of land, so sold by them, contained one hundred and one acres, two roods, and twenty perches, and consists of two parcels, the one known as the Douglass tract, containing ninety-nine acres, no roods, and five perches. The other, called the Morrow lot, containing two acres, two roods and fifteen perches, as per survey and plat of S. H. Brown, Esqr. S. J. C. made a part of the report. Said special commissioners further reported, that said Kable, on the day of the date of said report, paid into the hands of the special commissioners, who qualified under said decree, the sum of $3,803.25, being one-third of the purchase money for ninety-nine acres, (the quantity supposed to be contained in the said tract).
The commissioners further reported to the court, that they had received information that a motion to open the biddings would be made, and an advance of ten per cent. offered upon said land. This report is signed by all the commissioners, and is dated the twentieth day of October, 1873.
Afterwards on the first day of November, 1873, and during the same term to which said special commissioners made their said report of sale, the motion made by the appellee, Charles J. Mitchell, to re-open the bids on the sale of said land, made by said special commissioners, under the last named decree of sale, upon a proposed advance by him of ten per cent. on the bid of the appellant (Kable) was heard on said report of said special commissioners, filed at that term, and the affidavits of sundry persons filed. And the court, in its decree, made at the date last aforesaid, recites, substantially, that, it appearing that written notice to all the parties to the cause, as well as to said Kable (appellant), of said motion, had been given more than ten days before said motion was made. On consideration whereof, the court doth adjudge and order, that the biddings at said sale be reopened, on said Mitchell paying to said special commissioners the amount of all costs and charges of making said sale, in which the sum of fifty dollars is to be included, for commission of said special commissioners, for their trouble in making said sale, that is to say, the sum of $85.25, and also the interest on the cash payment of Kable (appellant) of $3,803.25, from the twentieth day of October, 1873, when said payment was made to said special commissioners, to this day, that is, $6.97, and executing and filing with the papers of the cause, bond, with good security, approved by the court, payable to the State of West Virginia, in the penal sum of $6,000, conditioned that said Charles T. Mitchell, when said real estate of said Drew shall be again put up at public sale, in pursuance of a decree of this court, shall bid for the same the price heretofore bid for the same, together with said advance of ten...
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