De Loach v. White

• Decision Date: 06 February 1919
• Docket Number: 7 Div. 982
• Citation: 202 Ala. 429,80 So. 813
• Court: Alabama Supreme Court
• Parties: DE LOACH v. WHITE et al.

80 So. 813

202 Ala. 429

DE LOACH v. WHITE et al.

7 Div. 982

Supreme Court of Alabama

February 6, 1919

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Proceedings for sale of land and distribution of proceeds among tenants in common, all of whom are parties. From an order and judgment in favor of Daisy White and others, setting aside a judicial sale and directing a resale, W.H. De Loach, as a tenant in common and purchaser at the sale, appeals. Affirmed.

Knox Acker, Dixon & Sterne, of Anniston, for appellant.

Willett Willett & Walker and Blackwell, Agee & Bibb, all of Anniston for appellees.

MAYFIELD J.

This appeal is from an order or judgment setting aside a judicial sale and directing a resale. The property being sold is real estate, residence property in the city of Anniston; and the sale was being made for distribution of the proceeds of sale among the tenants in common thereof--all of whom are the sole parties to this appeal.

While the property was sold in several parcels, and each parcel was bid off by a separate party--all of whom were third parties and strangers to the suit to sell for distribution--they all transferred their bids to appellant, one of the tenants in common, before the report of sale was made, and the transfer of each bid to appellant was made a part of the report; hence they had no interest in the confirmation of the sale, or in the order setting it aside; and hence they are not parties to this appeal.

The appellant, who seeks to enforce confirmation of the sale owns an undivided seven-twelfths interest in all the property involved.

The sale for distribution between the tenants in common is a kind of partition between the joint owners, necessitated because there could not be a partition in specie without sacrificing the interests of all.

These facts therefore clearly distinguish this case from ordinary judicial sales, when the property is purchased by strangers at public and auction sales, and when such purchasers have a pecuniary interest in having their contracts of sale enforced by the courts.

While the purchases here were made by several strangers, they all transferred their purchases to appellant, one of the tenants in common, and a party to the proceedings to sell; and hence had no further interest in the proceeding. This case therefore stands as if one of the tenants in common had purchased all of the property at the sale. The text-books and decisions make a distinction when the rights of third parties are involved, and those like this, in which only the parties to the proceedings are involved. See Roorer on Judicial Sales, §§ 545, 550, and notes, and our own case of Littell v. Zuntz, 2 Ala. 260, 36 Am.Dec. 415, and cases following Bank v. Hunt, 8 Ala. 886; Helena Coal Co. v. Sibley, 132 Ala. 654, 32 So. 718.

The aggregate price for the whole was only $6,700, and on the resale a price of at least $8,000 is guaranteed--a profit of $1,300, seven-twelfths of which goes to appellant. Surely the profits he would make in acquiring the five-twelfths interest of appellees at $6,700 will not exceed his profits in this resale. If so, it is a circumstance to justify the order of resale.

It is very true that the general rules as to setting aside judicial sales as for inadequacy of price, and promises, and assurances of greater prices on resale, are in the main as stated by counsel in their brief. Some of these rules are...