Roy v. O'Neill

• Court: Supreme Court of Alabama
• Writing for the Court: SIMPSON, J.
• Citation: 52 So. 946,168 Ala. 354
• Decision Date: 02 June 1910
• Parties: ROY ET AL. v. O'NEILL.

52 So. 946

168 Ala. 354

ROY ET AL.
v.
O'NEILL.

Supreme Court of Alabama

June 2, 1910

Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.

In the matter of the estate of James A. Roy, deceased. From a decree of the chancery court on removal of the matter from the probate court, Louis A. Roy and others appeal adversely to John W. O'Neill. Affirmed. [52 So. 947]

Sterling A. Wood, for appellants.

Tomlinson & McCullough, for appellee.

SIMPSON, J.

The administration of the estate of James A. Roy was removed from the probate into the chancery court; and, under a decree of said court, the lands of said estate were ordered to be sold for distribution. Said sale was made, and report of the same made to the court by the administrator; but, before confirmation of the sale, exceptions were filed by the heirs, claiming that the sales of various named parcels were made for amounts greatly disproportionate to their values. Thereupon the court ordered a reference by the register, to have ascertained and reported whether any of said properties "sold for less than their full and fair value." The register made his report (September 13, 1909), stating that certain witnesses had testified before him; that he had reduced their testimony to writing and attached the same to his report; that no testimony was offered as to east half of lot 7, block 5, Birmingham, purchased by John W. O'Neill for $8,500; that he had been informed that O'Neill's bid had been withdrawn, and he therefore recommended that the sale of said property be not confirmed; but that the other property brought a fair price. (There is evidently a mistake in the description, leaving out lot 8, as shown by other parts of the record.) On September 23, 1909, the register filed a paper stating that John W. O'Neill had informed him (and had made an affidavit to that effect) that he (the register) had been misinformed as to the withdrawal of his bid for lot 8 and east half of lot 7, block 5, Birmingham. The register, accordingly, requests that the matter be again referred to him. A motion was made to strike from the files said supplemental report of the register, on the ground that the five days for exceptions having expired, the original report stood for confirmation; said O'Neill having, by laches, lost any right to except to the same. This motion was overruled, and a decree was rendered on October 30, 1909, referring the matter back to the register, in accordance with his request, and authorizing him to consider the testimony on file in the previous report; and on November 17, 1909, the register made another report, recommending the confirmation of all of the sales, and attaching additional testimony taken. Exceptions to said report were overruled, and the report was confirmed December 9, 1909. On December 15, 1909, the adult heirs appeared in court and offered $12,500 for said property which had been bid in by O'Neill for $8,500, and prayed that the same be conveyed to them; and said petition was denied January 17, 1910. A petition was filed by O'Neill praying that the property be delivered to him, which was demurred to and answered, and this appeal is from the final decree, overruling demurrers, fixing the amount of the supersedeas bond for appeal, etc.

It is insisted, first, that the chancellor erred in making the order of re-reference to the register.

This is a matter which rested in the discretion of the chancellor, and will not be revised on this appeal. Nunn v. Nunn, 66 Ala. 36, 38; Gordon, Rankin & Co. v. Tweedy, 74 Ala. 233, 236, 49 Am. Rep. 813.

At first sight there seems to be some confusion in the cases as to the principles which should control, in a court of equity, in regard to affirming, or refusing to affirm, sales made under its orders; but the seeming conflict may be to a great extent explained by the fact that some of the cases relate to sales under mortgages, or creditors' bills, or other proceedings to enforce the collection of a debt.

It is evident that, when a creditor is proceeding to collect his debt, he is not under [52 So. 948] any obligation to see that the property of his debtor brings a reasonable price, but is entitled to enforce it whether the property brings its value or not; the owner being protected by the redemption statutes. It therefore follows that, in such proceedings, if the sale is properly advertised, and fairly sold, according to law, the sale will not be set aside merely for inadequacy of price. Littell v. Zuntz, 2 Ala. 256, 260, et seq., 36 Am. Dec. 415; Helena Coal Co. v. Sibley, 132 Ala. 651, 654, 32 So. 718; Mahone v. Williams, 39 Ala. 202, 220.

The case of Bethea v. Bethea, 136 Ala. 584, ...