State v. Hatfield
Decision Date | 13 November 1951 |
Docket Number | No. 10337,10337 |
Citation | 67 S.E.2d 529,136 W.Va. 342 |
Court | West Virginia Supreme Court |
Parties | STATE, v. HATFIELD et al. |
Syllabus by the Court.
1. Procedure applicable in chancery causes as to consideration of upset bids is applicable to such bids filed in proceedings instituted by the State for sale of forfeited and delinquent lands.
2. Whether a sale of land shall be confirmed or the property again offered for sale, upon the filing of an upset bid, depends upon circumstances of the particular case, and the action of the trial court thereon will not be disturbed on appeal unless plainly wrong.
Justice & Justice and John J. Justice, all of Williamson, for appellants.
William C. Marland, Atty. Gen., George W. Stokes, Asst. Atty. Gen., for State.
Scott, Ducker & Keadle, H. L. Ducker, Paul W. McCreight, all of Huntington, for Enoch L. Fillinger, Elizabeth Fillinger, Josie Chambers, Wallace Curry and Harry K. Curry.
The deputy commissioner of forfeited and delinquent lands of Mingo County, on July 16, 1948, instituted this proceeding for the purpose of having sold certain lands alleged to have been forfeited to the State for the nonpayment of taxes. Included within the lands proceeded against were three tracts represented by the State Auditor's Certificates Nos. 800, 801 and 802. Tract No. 800 is described as containing 132.95, acres, minerals, tract No. 801 as containing 75.4 acres in fee, and tract No. 802 as containing 87.65 acres in fee, all situated on Guyan River, in Stafford District, Mingo County. By decree of January 25, 1949, the court ordered that the three tracts of land be sold, and the deputy commissioner, after having duly advertised the sale, on February 23, 1949, proceeded to sell the lands described in the proceeding mentioned, and lands described in other similar proceedings. The sale continued throughout the twenty-third, twenty-fourth and twenty-fifth of February, and the three tracts were sold to W. S. Thornton and Bennett Cline, on the third day of the sale. Before the sale was confirmed, however, two identical upset bids were received, one from Harry K. Curry and one from Troy Floyd, in amounts approximating the final bids of Thornton and Cline, plus ten per cent. Thereupon the court, without entering any order, directed that the three tracts of land be resold, and the second sale was had in open court, on May 23, 1949.
At the sale held in open court William Adair became the purchaser of the three tracts of land and, on June 8, 1949, the court confirmed the sale and directed the deputy commissioners to execute and deliver deeds to assignees of Adair. The deeds were duly executed and delivered on June 22, 1949. On July 30, 1949, Thornton and Cline, the purchasers at the first sale, filed their petition in the proceeding praying that the decree confirming the sale to Adair be set aside, that the deeds made to the assignees of Adair be decreed to be null and void, and that the sale made to Thornton and Cline be approved and confirmed. A hearing was had by the court upon the petition and, without entering any order, the court directed: 'If the petitioners will file an upset bid of 10% more than the last bid received of $1,600.00, the sale will be reopened.' On January 30, 1950, the last day fixed by the court for the receiving of such upset bid, an upset bid in the amount of $1,826.00 was received from Clara W. Justice, accompanied by her personal check for that amount. There is some contention to the effect that the did was made by Clara W. Justice on behalf of Thornton and Cline The court found and decreed, however, that We find no basis for disturbing this finding. By the same decree the court again affirmed the sale to Adair and dismissed the petition of Thornton and Cline. The last mentioned decree was entered on January 31, 1950, and it is from that decree that Thornton and Cline obtained this appeal.
The three tracts of land were sold to the State for the nonpayment of taxes for the year 1931 and, at the date of the entry of the decree of sale, the amount of taxes, interest and costs owing as to each tract was $911.57, $496.90 and $638.84, respectively. The amount of purchase money paid by Adair for each tract was $660.00, $500.00 and $500.00, respectively. The amount of the final bid for tract No. 800, by Thornton and Cline, at the first sale, was $102.00, and the amount of each of the upset bids received therefor, from Curry and Floyd, was $112.50. The amount of the final bid for tract No. 801, by Thornton and Cline, at the first sale, was $205.00, and the amount of each of the upset bids received therefor from Curry and Floyd was $225.50. The amount of the final bid for tract No. 802, by Thornton and Cline, at the first sale, was $202.00, and the amount of each of the upset bids received therefor, from Curry and Floyd, was $222.20.
The contentions made by appellants are included in the following propositions: (1) The applicable statute did not authorize the court to accept any upset bid; (2) upset bids should not have been received from Curry and Floyd, for the reason that they were present at the first sale; (3) that appellants had no formal notice of the receipt of the upset bids, or that the sale to them would be set aside, therefore no opportunity to be heard in the matter; and (4) that it was error to sell the three tracts 'as a unit or whole', because it was 'a deviation from the method and manner prescribed by the law under which such sales are made.'
Chapter 160, Section 14, of the Acts of the Legislature of 1947, now Code, 11A-4-14, reads: 'Except as otherwise specifically provided in this article, all suits instituted under the provisions thereof shall in all respects be commenced, proceeded in, heard and determined in like manner as other suits in chancery.' This act, effective before the institution of the instant proceeding, controls the procedure therein. Shields v. Romine, 122 W.Va. 639, 13 S.E.2d 16. In this State the matter of receiving upset bids has always been left to the discretion of the trial court, the discretion being reviewable, and the rule favors the receiving of such bids upon reasonable showing that the original sale price was inadequate. In State v. Murphy, 109 W.Va. 102, 153 S.E. 149, Point 3, syllabus, the Court held: 'Whether such sale be confirmed or the property again offered for sale depends in a great measure upon the circumstances of each particular case, and the decision of the chancellor thereon will not be disturbed * * * by this court unless plainly wrong.' See Gillmor v. Rinehart, 73 W.Va. 779, 81 S.E. 549; Abney Barnes Co. v. Davy Coal Co., 89 W.Va. 504, 109 S.E. 616. The rule appears to be different in Virginia. See Moore v. Triplett, 96 Va. 603, 32 S.E. 50, 70 Am.St.Rep. 882; Chandler v. Chandler's Adm'rs,...
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