Macfarlane v. Macfarlane

• Decision Date: 19 December 1905
• Citation: 50 Fla. 570,39 So. 995
• Parties: MACFARLANE v. MACFARLANE et al.
• Court: Florida Supreme Court

39 So. 995

50 Fla. 570

MACFARLANE v. MACFARLANE et al.

Florida Supreme Court, Division B.

December 19, 1905

Appeal from Circuit Court, Hillsborough County; J. B. Wall, Judge.

Petition by M. B. Macfarlane against D. S. Macfarlane and others for a confirmation of the sale in foreclosure and for a writ of assistance. From an order confirming the sale, petitioner appeals. Reversed and order of accounting.

Syllabus by the Court

SYLLABUS

Where real estate has been sold by a master under and in pursuance of a decree in chancery, and an order made confirming the sale and granting a writ of assistance to put the purchaser in possession, a party who purchased the property at the sale, and who has paid the amount of his bid and has been put in possession, is a necessary party to a proceeding instituted to set aside the sale or vacate the order of confirmation, and orders vacating such sale and setting aside the confirmation made without notice of such proceedings to such a purchaser are erroneous.

Where in a timely application to a court of equity to set aside a sale of real estate, made by its master in a chancery cause it is shown that the property sold is located in the city of Tampa, where several newspapers are published, and the notice of sale is published by the master making the sale in a newspaper published in the town of Plant City, 20 miles distant from Tampa, and it is alleged that the newspaper in which the advertisement was published had a small circulation in the city of Tampa, and that the advertisement was thus published in order that neither the defendants interested in the property nor the public should have notice of the sale and that the property might be sold for less than its value that the price bid for the property and for which it was sold was greatly inadequate, and these facts are not contradicted, there is such an element of unfairness in the method of advertising and selling the property as, coupled with the inadequate price, requires that the sale should be set aside.

COUNSEL

Macfarlane & McKay, for appellant.

Gunby &amp Gibbons and Wm. Hunter, for appellees. A branch of this case was before this court at the January term of this year, and our decision is reported in 38 So. 512. From the facts therein stated, and also stated in the record now before us, M. B. Macfarlane, on the 6th of June, 1904, became the purchaser of certain real estate in the city of Tampa, sold under a final decree in favor of cross-complainant D. S. Macfarlane in the foreclosure suit of E. J. Hills v. J. H. Dorsey, et al., brought in the circuit court of Hillsborough county, which decree is dated the 13th of April, 1904. On the motion of the Dorseys this decree was set aside by the chancellor on the 20th of July, 1904, and after the sale to M. B. Macfarlane. An appeal without a supersedeas was taken by D. S. Macfarlane from the order setting aside said decree, and this court reversed the said order, and our opinion and decision is reported in 38 South., supra.

The master's report of the sale filed June 17, 1904, set forth the notice of the sale, with proof of publication in the Plant City Courier, a weekly newspaper published in Hillsborough county, and that at the consequent sale of the property so advertised M. B. Macfarlane was the highest and best bidder therefor at the bid of $100, which had been paid.

On December 30, 1904, M. B. Macfarlane, the purchaser, filed a petition in said cause asking for a confirmation of the sale, and for a writ of assistance to put him in possession of the premises. On January 4, 1905, D. S. Macfarlane filed an answer to said petition admitting the regularity of the sale, that M. B. Macfarlane was the highest and best bidder for the premises sold, that he was a purchaser for value, that the sale was for cash, that the amount had been received, that the master's report was true in every respect, that it was filed on the 17th of June, 1904, and no exceptions were filed or taken thereto by either complainants or defendants, that the sale was regularly conducted and bona fide, and admitting all the allegations of the petition.

On the 8th of May, 1905, the Dorseys filed an answer to the petition of M. B. Macfarlane in the following words:

'Now comes J. H. Dorsey and Emily C. Dorsey, his wife, and for further answer to the petition of M. B. Macfarlane filed in this cause on December 30, 1904, asking for an order of this court to confirm the sale of the property in said petition described, made by one H. R. Williams, master in chancery, on the first Monday in June, A. D. 1904, say: That the said sale ought not to be confirmed for the following reasons, to wit: That these defendants, J. H. Dorsey and Emily C. Dorsey, his wife, were at the time of the said sale, and the advertisement of the same, the owners and in possession of the property in said petition described, but that they were temporarily absent from the city of Tampa, and had no knowledge of said sale, or that their property was advertised for sale. That said advertisement of said sale was not published in any of the papers, either daily or weekly, which are published in the city of Tampa, and that said property is situated in the city of Tampa, but that the said advertisement of said sale was published in the Plant City Courier, a weekly newspaper published in Hillsborough county, but these defendants say that it was published more than twenty miles away from the city of Tampa in the village of Plant City, and that the said newspaper had a very small circulation, if any, in the city of Tampa, where the property was situated.

'These defendants further say that the property so advertised in the Plant City Courier was of great value, to wit, about the value of fourteen thousand dollars, and that it was sold for the sum of one hundred dollars by the master in chancery, H. R. Williams; that these defendants never saw the advertisement of said sale, and did not know until long after the said sale, to wit, on or about December, 1904, that said property had been advertised and sold; that these defendants further say that said advertisement was not a proper notice of a judicial sale, and was published in the Plant City Courier in order that neither of these defendants nor the public should have notice of said sale, and for the purpose of permitting the complainant, D. S. Macfarlane, or his attorney or agents, to bid in the property at much less than its value and get title thereto, and that the said sale is a fraud upon the court and upon the rights of these defendants, and that the price obtained for said property was inadequate and insufficient, and not such a price as would have been obtained had the property been property advertised in the city of Tampa, in which city the property is located, and in which city there are published three daily newspapers of large circulation. And therefore these defendants say that the petition of M. B. Macfarlane for the confirmation of said sale should be denied, and that said sale should be set aside as illegal and fraudulent.'

The answer was sworn to by J. H. Dorsey.

On the hearing of the petition on the 17th of May, 1905, affidavits of several real estate experts were filed as to the value of the property, placing it at $7,500 and upwards, and the chancellor made the following order of confirmation: 'The foregoing petition and the answer thereto being duly considered by the court, together with the affidavits submitted to the court as to the value of the property, and it being considered by the court that no valid of sufficient cause has been shown why the sale should not be confirmed, it is therefore ordered and decided that the prayer of the petition be granted, the sale confirmed, and a writ of assistance awarded to put the purchaser, M. B. Macfarlane in possession of the property. Done and ordered this 17th day of May, A. D. 1905. J. B. Wall, Judge.'

On the same day the foregoing decree was made a writ of assistance was issued, though it does not appear that any previous demand for the possession of the premises had been made and refused. The writ of assistance was executed on the same day it was issued, and M. B. Macfarlane put in possession of the property which he had purchased.

On the 19th of May, 1905, the Dorseys filed motions to vacate the order confirming the sale and granting the writ of assistance. On the same day, and without notice to M. B. Macfarlane, the chancellor denied these motions.

On the 20th of...