Smith v. Holowell

• Decision Date: 04 December 1923
• Citation: 256 S.W. 408,201 Ky. 271
• Parties: SMITH v. HOLOWELL.
• Court: Kentucky Court of Appeals

256 S.W. 408

201 Ky. 271

SMITH v. HOLOWELL.

Court of Appeals of Kentucky.

December 4, 1923

Appeal from Circuit Court, Caldwell County.

Action by Mrs. Ruth White and another against Charles L. Smith and others, for the sale of the dower interest of the departed widow of Tyron Y. Smith, deceased, and a division of the proceeds.There was a sale of the property to John W Holowell, and, from an order overruling exceptions to the report of the sale on the ground of inadequacy of price defendant named appeals.Affirmed.

R. W Lisanby and Alvin Lisanby, both of Princeton, for appellant.

S.D Hodge, of Princeton, for appellee.

SAMPSON C.J.

This action was commenced by Mrs. Ruth White and husband against Chas. L. Smith and the other heirs of Tyron Y. Smith, for the sale of the dower interest of the departed widow of deceased Tyron Y. Smith, and a division of the proceeds.Judgment was entered directing a sale of the lands in accordance with the prayer of the petition.

The lands were duly advertised by the master commissioner as directed by the judgment, and at the January term of the county court the sale was carried out, at least to the extent of auctioning off the property at the price of $3,050.The purchaser failed to execute purchase-money bonds, and the commissioner readvertised the lands for sale on Monday, county court day, in February, at 1 o'clock p. m. When the hour of sale arrived a heavy rainstorm was in progress.Only a small crowd gathered.The master commissioner had an auctioneer present to cry the property and receive bids.Before the lands were offered for sale the auctioneer cried several sales for the sheriff.The rain continued but not so heavy.In due course the master commissioner offered the land in question for sale.Two or three persons bid, and it was knocked off to the highest bidder, Holowell, at the price $2,005, which was $1,045 less than the price at which the same lands were bid off at the sale one month before.

Some of the joint owners, infants, filed exceptions to the report of sale, on the ground that the price was inadequate and bidders were kept away from the sale by the heavy rain.It is admitted that the sale was properly advertised.Announcement was made in a loud voice at the front door of the courthouse that the sale was about to be made.Some of the alleged prospective bidders were in business just across the street from the courthouse and near enough to have heard the auctioneer.One of them says he was too busy waiting on customers in his store to remember the sale, and had forgotten it.The other said it rained too hard for him to attend.

Inadequacy of price alone has never been held sufficient to justify the setting aside of a decretal sale, but where the sale price is so inadequate as to shock the conscience of the chancellor other slight irregularities and circumstances will justify disaffirmance of a sale.Of course bad faith or fraud on the part of an interested party is always sufficient to render a sale invalid, where they operate to the...