Roudabush v. Miller
| Decision Date | 04 December 1879 |
| Citation | 73 Va. 454 |
| Court | Virginia Supreme Court |
| Parties | ROUDABUSH v. MILLER & als. |
1. The English practice of--as a matter of course--opening the biddings of a sale made by the master under a decree of the court, upon the offer of a reasonable advance bid, has not been adopted in Virginia.
2. Whether the court will reopen the bids after such a sale, is a question addressed to the sound discretion of the court subject to the review of the appellate tribunal; and the propriety of its exercise depends upon the circumstances of each case, and can only be exercised when it can be done with a due regard to the rights and interests of all concerned--the purchaser as well as all others.
3. When a sale has been fairly made, and for a fair price, it should never be set aside when there is good reason to believe that the upset price has been offered to gratify ill will towards the purchaser.
4. Where two or more persons desire to acquire different parts of a tract of land which is offered for sale at public auction by commissioners under a decree of the court, with respect to the convenience of the several parcels to their own lands respectively, it is not unlawful or improper for them to bid for the whole tract when it is offered to the highest bidder, with the understanding that they will divide it between themselves, and how they will divide it, if they should become the purchasers, and that each one shall be bound to comply with the terms of purchase as to his own part, as agreed between themselves.
This is a sequel of the case of Jennings & als. v. Shacklett & als., reported 30 Gratt. 765. The case was heard at Staunton, but was decided at Richmond.
When the cause went back to the circuit court of Rockingham county, a commissioner reported an account of the liens existing upon the lands of the defendant Jennings, and their priorities, dividing them into eleven classes, and making the whole amount, principal and interest, up to January 1st 1879, $10,871.27. And the court, confirming the report decreed that unless, & c., J. S. Harnsberger and Robert Johnston, appointed commissioners for the purpose, were directed to sell the lands of said S. B. Jennings, and his interest in lands, or so much, & c., at public auction on the following terms, viz: cash in hand sufficient to pay costs of suit and expenses of sale, the residue in four equal annual payments, with approved personal security, and lien retained as ultimate security; but not until four weeks' notice of the time, terms, and place of sale shall be given by advertisement in one or more newspapers of said county and by like notice posted near the land.
The commissioners reported that, after advertising as directed in the decree, they sold the several parcels of land owned by Dr. S. B. Jennings, or in which he had an interest, and they set out the different parcels sold, the purchasers, price, & c.; but the controversy in this case relates only to one of the tracts. Of this tract they report: The one hundred and forty-three acre tract and the fifty acre tract, which are known respectively as the Home farm, upon which the mill is situated, and the Baugher or Roudabush tract, constituting one tract of cleared land of one hundred and ninety-three acres, was knocked off to Dr. S. P. H. Miller, as the agent of Mrs. Sallie C. Miller, Dr. Joseph H. Wolfe and Charles W. Harnsberger, with the understanding that each wanted certain parts or parcels of the same--as the same was situated contiguous to their other lands--and that each should comply with the terms of sale for their respective parts at the price of $25 per acre; that is to say, the 193 A. at $25 per acre, amounting to $4,825. They then state that these parties have satisfactorily complied with the terms of sale as follows, viz, & c.
The commissioners further report that in selling the one hundred and ninety-three acres of cleared land, they first offered it as a whole, and received a bid of $24 per acre--$4,632. They then held this bid, and offered the whole one hundred and ninety-three acres, less the mill and ten acres therewith, and all necessary water privileges for the mill; and they were offered, for the one hundred and eighty-three acres, a bid of $19 per acre, and $700 for the mill, ten acres and water rights. They then offered the land in two other parcels, which they set out. That the highest bid was given upon the first offer as a whole, so the tract as a whole was reoffered at $24 per acre, and was run up to $25 per acre; and this being considered over the assessed value for taxation for the year 1878, they knocked the same off, as before stated.
In June, 1879, John H. Roudabush presented his petition in the cause, in which, expressing the belief that this tract of land did not bring an adequate price and could be sold for more, he offered a bid of ten per cent. advance upon said bid, and binds himself to make good the said bid if the said land is exposed again to sale. He offered, as his sureties to make good the said obligation, Hiram A. Kite and William E. Kite. And they signed the petition with Roudabush.
A number of affidavits were filed with reference to this application. Their substance is sufficiently set out in the opinion of the court delivered by Judge Anderson.
The cause came on to be heard on the 30th of June, 1879, when the court refused to open the bidding; and, among other things, decreed that the sale of the tract to Mrs. Miller, Wolfe, and Harnsberger, be confirmed. And thereupon Roudabush applied to a judge of this court for an appeal; which was awarded.
Robt. Johnston and John E. Roller, for the appellant.
Wm. B. Compton and G. E. Sipe, for the appellees.
The sale which is sought to be set aside in this case was made by commissioners under a decree of the circuit court of Rockingham county, reported to the court and confirmed. The sale was made upon full notice to the public, and upon the terms required by the decree, and was conducted by the commissioners with fairness, and evidently with the view of getting the best price for the land it would command.
They first sold Dr. S. B. Jennings' life interest in the twenty-five acres of land, which had been assigned to the heirs of Mrs. Ann Jennings, and which was purchased by her children, and the sale to them was confirmed, and there is no objection made to its confirmation. The tract of one hundred and ninety-three acres of cleared land, consisting of a tract of one hundred and forty-three acres, and a tract of fifty acres, known as the Home farm, upon which the mill is situated, were offered together, and were knocked off to Dr. S. P. H. Miller, the agent of Mrs. Sallie P. Miller, Dr. Joseph H. Wolfe and Charles W. Harnsberger, at the price of $25 per acre, with the understanding that they would divide it between themselves, and each one comply with the terms of the sale as to their respective parcels, as they should agree amongst themselves. Accordingly, Sallie C. Miller took 111 acres 3 roods and 37 poles thereof, at $31.51 per acre, amounting to $3,528.70, and complied with the terms of the sale as the purchaser thereof; Dr. Wolfe took 20 acres off the east side of the 193 acres, at the price of $16 per acre, amounting to $320, and complied with the terms of the sale as the purchaser thereof; and C. W. Harnsberger took 61 acres and 3 poles off the south side of the 193 acre tract, at the price of $16 per acre, amounting to $976.30, and complied with the terms of sale as the purchaser thereof--the whole aggregating four thousand eight hundred and twenty-five dollars: the sum for which it sold at $25 per acre. This sale was reported to the court and confirmed.
There was another tract sold, which, on account of the insufficiency of the security, in the opinion of the commissioners, was not confirmed; and there was a tract sold to George W. Harnsberger which was not confirmed. There is no question upon this appeal as to the correctness of the decree in respect to the said two tracts, and it need not be further noticed in that regard.
The commissioners first offered the 193 acres as a whole, and received a bid of $24 an acre--$4,632. They held this bid, and then offered the mill with ten acres and water rights, and the residue of the 193 acres, separately. For the latter the highest bid they received was $19 an acre, and for the former--the mill with ten acres and water rights--$700. They then offered the land in two other parcels; and the bids not together equaling the highest bid which had been made for the tract as a whole, they again offered the 193 acre tract as a whole at $24 an acre, when it was run up to $25 an acre, at which it was knocked off, as before stated.
Where two or more persons are desirous of acquiring different parcels of a tract of land, which is offered for sale at public auction by commissioners, under a decree of court, with respect to the convenience and advantage of the situation of the several parcels to their own lands respectively, it is not unlawful or improper for them to bid for the whole tract where it is offered to the highest bidder, with the understanding, that they will divide it between themselves, and how they will divide it, if they should become the purchasers, and that each one shall be severally bound to comply with the terms of purchase as to his own part, as agreed between themselves.
And when the sale of it as a whole is suspended by the commissioners, and the same is offered in parcels, with the view of getting a better price for it, those who bid for it as a whole, with an understanding to divide it amongst themselves, are not bound to...
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