National Bank of Kingwood v. Jarvis
| Decision Date | 13 November 1886 |
| Parties | National Bank Of Kingwood v. Jarvis Et Al. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1886.
Under a decree of the court, a commissioner is directed to sell three tracts of land; on the day of sale the land is bid off to A the debtor, and he being unable to comply with the terms of sale makes a parol agreement with D., by which it is agreed he shall be reported as the purchaser instead of A., and the latter, as an inducement to D. to purchase, agrees to get his wife to release her contingent dower in the lands, which the wife afterward refuses to do; the commissioner reports D. as the purchaser, and the court confirms the sale without objection; on a subsequent day of the same term N., a creditor of A., offers for one of said tracts an upset bid of twenty per cent. advance on the price of said tract, and the court sets aside the confirmation as to said one tract; at a subsequent term D. moves the court to confirm the sale to him of said tract, and A. moves to have the same set aside and a re-sale ordered; the court sets aside the sale and orders a re-sale on the basis of the up-set bid, the re-sale is made and N. becomes the purchaser at his upset bid; this sale is confirmed, and D. appeals to this Court.
HELD:
I. The court properly set aside the order confirming said first sale, (p. 813.)
II. N had the right to ask the court to set aside said order of confirmation and sale, although it was demonstrated that A had ample other real estate to pay his debt. (p. 814.)
III. The said parol agreement could not be specifically enforced nor could it operate as an estoppel or conclude the right of A. to resist the confirmation of the sale. (p. 815.)
IV. The court rightly set aside the first sale of said tract and properly confirmed the re-sale to N. at his upset bid. (p. 815.)
Martin & Woods for appellant.
A. F. Haymond for appellee.
In October, 1882, the National Bank of Kingwood on behalf of itself and all other creditors of Granville E. Jarvis exhibited its bill in the circuit court of Taylor county against said Jarvis and others to subject the real estate of Jarvis to the payment of the judgment of the plaintiff and
other judgment creditors of Jarvis. The cause was referred to a commissioner, who reported the lands owned by Jarvis and the debts operating as liens thereon. The cause was soon after removed to the circuit court of Marion county where all subsequent proceedings were had therein. By decree entered December 18, 1883, the said report was confirmed without exception and Frank Woods appointed Commissioner to sell a large number of tracts of lots of land of Jarvis to pay the debts so reported as liens thereon. The said commissioner at the July term 1884, filed his report, in which he reports, among other sales, that pursuant to said decree, he did on March 20, 1884, sell to Thomas E. Davis three tracts or parcels of land all lying in Ritchie county, viz: (1) three undivided fourth parts of 171 acres on the waters of Spruce creek, at the price of $614.00; (2) the one undivided fourth of 1,000 acres lying on the North Fork of Hughes River, at the price of $2,025.00; and (3) a tract of 184 1-4 acres, lying on McFarland's Run, at the price of $736.00, for each of which tracts the said Davis made the cash payment and gave bonds separately and in all respects complied with the terms of sale. This report was by a decree entered July 17, 1884, confirmed without exception.
On July 15, 1884, by leave of the court, James B. Newlon filed his petition in the cause, in which he alleged that in November, 1882, he had recovered a judgment for $742.47 against the defendant, Jarvis, in the circuit court of Taylor county, which had not been reported or provided for in this cause, but was a lien on all the lands of Jarvis, and prayed that he might be made a party to the cause, and that his judgment might be provided for, the same as if he had been originally a party.
At the same time said Newlon filed his affidavit in which he says, that the aforesaid undivided fourth of 1,000 acres of land was bid in by Claude S. Jarvis for $2,125.00 or more, and that said T. E. Davis bid within $25.00 of the said bid of Jarvis; that on yesterday he was surprised to find that said land had been reported by the commissioner as sold to Davis at $2,025.00; that he believes this was done by some arrangement between the commissioner and Jarvis which is not binding upon affiant who would be injured by it; that he
was informed by the commissioner that, if Jarvis did not comply with the terms of sale, the land would be re-sold, and that there was another person who was anxious to buy the land at a greater figure; that the price of the land as reported is very inadequate; that the land is worth $3,000.00, and that if a re-sale is ordered he will make it bring $2,500.00. With this affidavit he filed his bond with security binding himself to make said land bring $2,500.00 on a re-sale.
Newlon then moved the court to set aside the sale of said land, with leave to except to the report of sale; and thereupon the court, on said 15th July, 1884, made an order, giving Newlon leave to except to said report, and setting aside so much of the decree of July 7, 1884, entered on former day of term, as confirmed the sale of said one-fourth of 1,000 acres of land sold to said Davis, and continued the consideration of the confirmation thereof, to a future term.
Newlon then excepted to the report of sale on the ground that the sale to Davis of said one fourth of 1,000 acres was at an inadequate price, and because said land had been reported at a less price, than was bid for it, and to different persons than the highest bidder without any cause therefor or re-sale having been made.
The defendant, Jarvis, on September 2, 1884, by leave of the court filed exceptions to said report of sale so far as it relates to said 1,000 acres of land. His exceptions are in effect as follows: (1.) The price is inadequate, the same having been reported by the master commissioner as worth $2,500.00; (2.) It was improperly advertised as the one fourth of 1,000 acres when the papers showed that it was the one half of 675 acres, and before the sale this 675 acres had been divided and 401 acres assigned to him in severalty; (3.) The land had not been advertised in a newspaper in Ritchie county where it lies as required by chap. 151, Acts 1872-3; (4.) It had not been bid in by Davis; and (5.) Its chief value consists in its timber and it had not been advertised as timber land.
In support of these exceptions, Jarvis filed certified copies of deeds showing the partition of the land and the assignment of 401 acres to him in severalty, and his own affidavit which will be noticed hereafter.
On September 2, 1884, Newlon by leave of the court filed an up-set bid of $3,025.00, with bond and security to make the same good, and his affidavit stating the land was worth that price.
On November 28, 1884, Thomas E. Davis made a motion to confirm said sale and by leave of the court filed in support of his motion the affidavits of himself, Frank Woods and J. W Mason. In his own affidavit Davis states, that on March 20, 1884, he was present at the sale and made a number of bids on the three tracts of Ritchie county lands before mentioned; the defendant, Jarvis, bid against him, and the said lands were bid off to Jarvis and by his direction reported as sold to his son, Claude S. Jarvis; after a number of sales had been made, the commissioner gave notice that he would adjourn the sale of the other lands to Monday, March 24, 1884, and he would then re-sell such lands as had been sold to purchasers who had failed to comply with the terms of sale; on Monday at the request of Jarvis he agreed to take said three tracts of land at the aggregate sum of $3,375.00, Jarvis agreeing to unite with his wife in a separate deed releasing the wife's contingent right of dower, and the commissioner was to report him, Davis, as the purchaser at that price instead of Claude S. Jarvis; they went to Commissioner Woods and stated their agreement, and he required them to fix a price on each tract separately as he was not authorized to sell the three tracts together; they then, as simple matter of form, fixed the price of each tract as set forth in the report of the commissioner; after the sale was closed affiant prepared a deed for Jarvis and wife to execute as had been agreed and left it with Jarvis to be executed and sent to him; he then returned to his home in Ritchie county, and having no doubt that the sale would be confirmed, he sold the fourth of said 1,000 acres and bound himself to make a deed...
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