Kirkpatrick v. Lewis

• Decision Date: 11 April 1930
• Docket Number: 35.
• Citation: 149 A. 614,159 Md. 68
• Parties: KIRKPATRICK v. LEWIS ET AL.
• Court: Maryland Court of Appeals

149 A. 614

159 Md. 68

KIRKPATRICK v. LEWIS ET AL.

No. 35.

Court of Appeals of Maryland

April 11, 1930

Appeal from Circuit Court, Montgomery County; Robert B. Peter Judge.

Suit between Harlowe B. Kirkpatrick and Elizabeth Saville Lewis and others. From the decree, the former appeals.

Reversed and remanded.

Argued before BOND, C.J., and PATTISON, ADKINS, OFFUTT, DIGGES PARKE, and SLOAN, JJ.

Roger J. Whiteford, of Washington, D. C. (W. H. Talbott and William F. Prettyman, both of Rockville, on the brief), for appellant.

Charles W. Clagett and Fulton Lewis, both of Washington, D. C (Albert M. Bouic and Robert Peter, Jr., both of Rockville and Charles F. Wilson, of Washington, D. C., on the briefs), for appellees.

BOND C.J.

This is an appeal by a purchaser at a judicial sale of real estate, made by only three out of five trustees appointed to make the sale; and it is from an order sustaining exceptions to the ratification of the sale. The property is farm land in Montgomery county, of about 300 acres, now susceptible of development in building lots, and the sale was decreed under the Code, art. 16, § 152, for the purposes of partition or division of the proceeds among owners in common. The proceedings leading to the sale were in all respects regular, and no objection is made to them. The advertisement of sale was ample, exceeding that required by the decree.

All of the five trustees appointed had duly qualified, and all attended at the time and place designated. It is conceded that there was a good attendance of potential bidders, but exceptions on the ground of inadequacy of the price obtained are based to some extent upon the weather conditions. Rain fell until shortly before the sale was started. The bidding stopped at $950 an acre, and the trustees, in conference, differed on the propriety of selling at that figure. Three decided that the auctioneer should renew crying the sale, and that a bid of $950 or more should be accepted and reported to the court for ratification. And that conclusion was announced. At the same time it was announced that the two dissenting trustees would oppose the acceptance of $950. The bid at that figure was the highest finally obtained, and it was reported by the three trustees. Exceptions to ratification were filed a month later by Elizabeth S. Lewis, one of the parties in interest, on the grounds of inadequacy of price because of unfavorable weather conditions, and supposed ineffectiveness of the sale reported by reason of the lack of unanimity of the trustees in making it. These exceptions were withdrawn shortly before the day set for a hearing on them. Three days later, or seven weeks after the sale, an offer to buy at the price of $1,050 an acre was submitted to the trustees by Charles C. Koones, and was reported by them to the court. And thereupon the two trustees who had dissented from the acceptance of the bid of $950 an acre, filed a minority report on the sale at that figure, basing their objections on the grounds stated in the exceptions of Mrs. Lewis, and explaining that, during the seven weeks which had elapsed since the public auction, Fulton Lewis, one of the trustees, and husband of Mrs. Lewis, had been making persistent efforts to obtain a bid higher than $950, but had not succeeded and saw no prospect of success until the offer of Mr. Koones was received. Mrs. Lewis then renewed her exceptions, and exceptions were also filed on behalf of one party non compos mentis, and of another, an infant.

A stipulation prepared for the hearing on the exceptions recited that the employer of Mr. Koones, a real estate broker, had before the sale, and on the day following it, made inquiries of the trustees concerning the property, and that testimony of real estate brokers, some of it objected to, had supported the acceptance of the bid of $950.

This court concurs in the conclusion of the circuit court that, apart from the effect, if any, of the lack of unanimity among the trustees, there would be no ground for refusing ratification of the sale. It is settled that a subsequent higher offer alone affords no ground for it. Glenn v. Wootten, 3 Md. Ch. 514, 518. Loft, Inc., v. Seymer, 148 Md. 638, 645, 129 A. 911. There is not shown any such gross inadequacy of price obtained as to indicate of itself an impropriety or defect in making the sale. Bank v. Lanahan, 45 Md. 396, 410. The only evidence of a higher value is that of the subsequent offer and it seems that this was not obtainable at the time with which we are concerned, for the person making the offer was not prepared to make it immediately after the sale, or until seven weeks after. Meanwhile, according to the minority report, persistent efforts on behalf of the parties in interest had failed to find any one willing to make an offer higher than that reported by the majority. It is not shown that any possible bidder was kept from the sale by the weather, and there appears to be no sufficient ground for finding that a better sale might have been made on a dry day. Condon v. Maynard, 71 Md. 601, 607, 18 A. 957; Shaw v. Smith, 107 Md. 523, 526, 69 A. 116; Mahoney v. Mackubin, 52 Md. 357, 364; McCarty v. Hamburger, 112 Md. 40, 47, 75 A. 964; Bank v. Lanahan, 45 Md. 396, 411.

The circuit court considered, however, that acceptance of the highest bid by a majority of the trustees only was not in accordance with the authority given them by the decree, that a concurrence of all the trustees in the decision was required, that the sale reported by three, therefore, had no binding effect, and, in view of the apparent possibility of a better result, should be rejected, and a resale had. But on this we disagree. In the opinion of this court, the execution of the decree by a majority of the several trustees...