Robertson v. Smith

• Decision Date: 28 January 1897
• Citation: 94 Va. 250,26 S.E. 579
• Parties: ROBERTSON. v. SMITH.
• Court: Virginia Supreme Court

26 S.E. 579

94 Va. 250

ROBERTSON.

v.SMITH.

Supreme Court of Appeals of Virginia.

Jan. 28, 1897.

Judicial Sales—Terms of Sale—Enforcement by Rule—Ex Parte Affidavits— Statute of Frauds.

1. Where a purchaser at a judicial sale fails to complete his purchase, or to comply with the terms of the sale, he may be proceeded against by rule, and compelled to do so.

2. On a rule against a purchaser at a judicial sale to show cause why he should not be required to comply with the terms of the purchase, ex parte affidavits may be read, in the absence of a showing of necessity for depositions, or a reference to a commissioner.

3. Confirmation by the court of the report of commissioners showing sale on terms other than authorized by the decree under which they were acting cures the irregularity, and gives the sale the same validity as if made on the terms of the decree.

4. Judicial sales made by a chancery court through its commissioners are not within the statute of frauds, and are binding without any memoranda signed by the purchaser.

Appeal from chancery court of Richmond.

Proceeding by rule against John C. Robertson, in the suit of Harry F. Smith against James Netherwood and others, to compel performance of terms of judicial sale. From the decree on the rule, Robertson appeals. Affirmed.

Benj. H. Nash, for appellant.

D. C. Richardson, Sheild & Newton, and W. H. Beveridge, for appellee.

BUCHANAN, J. The commissioners who were directed to make the sales in this case reported to the court on the 11th of October, 1892, that they had sold the 42-acre parcel of land to the appellant for the price of $1,800, and that the conditions of the sale were "that he should pay $1,800 of the purchase money in cash, and assume the mortgage of $10,000, and also have the quarry tract, which was also subject to the lien of the mortgage, released from the same." They reported further that the appellant had paid "$1,000 as earnest of his good faith in the premises, but has not otherwise proceeded to comply with the terms of his purchase." On the 1st of November following, they reported to the court that the appellant was still in default in complying with the terms of sale, in this: that he had not had the quarry tract released from the lien of the mortgage, nor had he paid the same, —and asked for a rule against him to show cause why the land should not be resold at his risk, and costs for his failure to comply with the terms of sale. A rule was awarded against him, returnable to the 10th of November, and another returnable to the 15th of December, 1892, but no further action seems to have been taken upon these rules. Upon the 4th of February, 1893, James Netherwood, the purchaser of the quarry tract, which was sold to him by the same commissioners, upon the representation that the appellant had agreed to have the mortgage lien upon the quarry tract released, asked for a like rule against the appellant, returnable to the 8th day of that month. To this rule the appellant answered that he had fully complied with the terms of his purchase, according to his contract signed by the parties to the suit, and in accordance with the terms of a decree rendered in the cause on July 29, 1892, and that a deed as provided for in that decree had been delivered to him; and he filed with his answer the contract made with the parties to the suit. Upon the hearing of that rule, and a rule awarded against James Netherwood, the purchaser of the quarry tract, the affidavits of the commissioners who made the sale were read in evidence. This is assigned as error by appellant.

Upon a motion to confirm a commissioner's report of sale, or upon a rule against a purchaser or bidder at such sale to show cause why he shall not be required to comply with the terms of his purchase or bid, courts of equity must be able to act in a summary manner. It Is the usual practice to allow ex parte affidavits to be read by either party. This is ordinarily the proper practice, but the trial court, in the exercise of a just discretion, may require depositions to be taken in whole or in part, instead of ex parte affidavits, so that an opportunity for cross-examination may be had, or it may refer the matter to one of its commissioners where there is a necessity for it. Savery v. Sypher, 6 Wall. 157; Boyce v. Strother, 76 Va. 862, 864; Kable v. Mitchell, 9 W. Va., at page...