Morton v. Wade

• Decision Date: 11 May 1917
• Citation: 175 Ky. 564,194 S.W. 802
• Parties: MORTON v. WADE ET AL.
• Court: Kentucky Court of Appeals

194 S.W. 802

175 Ky. 564

MORTON v. WADE ET AL.

Court of Appeals of Kentucky.

May 11, 1917

Appeal from Circuit Court, Todd County.

Exceptions to judicial sale to E. L. Morton in action against Ed Wade Jr., and others, were sustained, and Morton appeals. Affirmed.

Petrie & Standard, of Elkton, for appellant.

Selden Y. Trimble, of Hopkinsville, J. R. Mallory, of Elkton, and Trimble & Bell, of Hopkinsville, for appellees.

HURT J.

This was an action in the Todd circuit court, wherein certain creditors of the appellee Ed Wade, Jr., whose debts were secured by mortgage liens and execution liens upon two tracts of land owned by him, which adjoined and constituted one tract of land upon which he lived, secured judgments against him for their debts and the enforcement of their liens. The lands were appraised by the appellant, E. L. Morton, and J E. Petrie, who were selected as appraisers for that purpose by the commissioner. They appraised the two tracts of land at the sum of $12,150. At the sale the lands sold for $8,300. This sum lacked about $2,000 of paying the creditors, whose debts were secured by liens upon the lands. Petrie was the successful bidder, but by an arrangement between him and appellant, Morton, Morton was substituted as the purchaser of the lands, and executed bond with Petrie and others as his sureties for the purchase price. The sale was reported as having been made to Morton. Wade filed exceptions to the sale, and asked that it be set aside. The court sustained the exceptions and set aside the sale, to which judgment of the court Morton excepted and prayed an appeal to this court. There were several exceptions to the sale, but as the others seem to be formal, or else based upon matters which could not be raised on exceptions to the sale, it is only necessary to advert to the ground, which was the real ground of exception to the validity of the sale. The appellee, Wade, insists that the price for which the land sold was inadequate, and that the reason for its sale at such a price arose from circumstances of impropriety and unfairness attending the sale on the part of those connected with the sale, and of such surprise upon his part against which ordinary prudence could not guard, and that the sale under the circumstances resulted in great injury to him. The court heard testimony upon the exceptions to the sale, and which is brought before this court in the transcript of the record.

It was shown and not denied that, on Thursday preceding the sale upon Monday, Wade was trying to secure some one to purchase the land who was able to execute the bond and who would give for it a price sufficient to practically discharge the liens upon it, and that in his efforts to do so, he secured one Yancey, who came and examined the lands and thereupon agreed with Wade that he would attend the sale and purchase the lands at the sum of $10,000, and would then hold it for the benefit of himself and Wade. Yancey was financially able to make the bond and to pay the purchase price. Wade relied upon this agreement with Yancey until the day of the sale, when about half after 11 o'clock on that day he first learned that Yancey would not be able to attend the sale. Yancey was the manager of a telephone company and lived in an adjoining county, and was fully intending to carry out his agreement with Wade, but on the day of the sale, very unexpectedly to Yancey, his employers, who reside at a distance, came to visit their holdings, and required his presence at a place other than the place of the sale. Yancey undertook to inform Wade of these facts on the morning of the day of the sale, and that he could not be present, but was not able to get into communication with him over the telephone, and finally sent to Wade a message, informing him of the situation, that he might secure a purchaser other than himself, but Wade failed to receive the message or information in regard to it until about half after 11 o'clock. The sale was to be made about 1 o'clock upon that day, and was made at about half after 1 o'clock. It seems that Petrie had knowledge of the arrangement between Wade and Yancey, and when Wade had become aware that Yancey could not fulfill the arrangement between them, Petrie made inquiry of Wade, if Yancey was going to be present, and when Wade answered that he would not, then Petrie inquired of him if one Shemwell was intending to buy the land, and received information from Wade that it did not suit Shemwell, and that he would not buy it. Petrie advised Wade to make the land bring $10,000, and announced to him that he was intending to bid for it and inquired of Wade what he would give him to bid it in for him at the sum of $10,000, and Wade told him to go ahead and buy it and that he would give him $500 to do so. Wade and Petrie, it seems, had been conferring, before that time, about Petrie's purchasing the land and holding it for the benefit of himself and Wade, and they had been discussing what things would be done upon the land in the event of such a consummation, and among them was a dairy business, for which Petrie would furnish the money and Wade would do the work. Wade observed Morton and Petrie conferring together, and inquired if Morton had a purpose to bid upon the land, and Petrie said that he had not; that he could not make the necessary bond.

Wade testifies that he understood, from the statements made in their conversations, that Petrie had agreed to purchase the land at $10,000 and to hold it for his benefit, although that Petrie did not, in express words, say that he was going to do so. Petrie denies making any such an arrangement with Wade or speaking or acting in a way to induce Wade to think that he was going to act for him. He, however, admits that he asked Wade the question as to what amount Wade would give him to bid the land in, and also testifies that his purpose was to bid as much as $10,000. Wade claims that, relying upon what he understood that Petrie had agreed to do, he desisted in his efforts to secure any other purchaser, and did not bid upon the land for himself, and that his friends, who were present, refused to bid, because the land was his home, and that they as well as himself believed that Petrie was bidding for the benefit of Wade, and that he did not know until after the sale had been made that Petrie was not going to carry out his agreement with him, but when he asked Petrie upon the subject, Petrie announced to him that he was going to let Morton have the benefit of his bid. Petrie discloses the fact that while these negotiations were going on between him and Wade, he already had an arrangement with Morton, who was his fellow appraiser of the land, to buy the land in for Morton and to become a surety in the bond and...