Stowe v. Rison

• Decision Date: 13 June 1929
• Citation: 148 S.E. 687
• Parties: STOWE. v. RISON.
• Court: Virginia Supreme Court

148 S.E. 687

STOWE.

v.RISON.

Supreme Court of Appeals of Virginia.

June 13, 1929.

Appeal from Circuit Court, Pittsylvania County.

Bill of review by George T. Rison, administrator with the will annexed of J. W. Tompkins, deceased, to set aside a decree confirming a judicial sale to J. W. Stowe and order a resale. Decree for complainant, and respondent appeals. Reversed and remanded, with directions.

Harris, Harvey & Brown and W. Howard Rogers, all of Danville, for appellant.

E. C. Hurt, of Chatham, and D. M. Bazile, of Richmond, for appellee.

PRENTIS, C. J. At the November term, 1927, the circuit court entered a decree confirming a sale of a tract of land containing 83³/₈ acres to the appellant, Stowe, as the highest bidder therefor at a judicial sale. The proceedings appear to have been in every respect regular. The commissioner of sale reported that Stowe, having made the highest bid therefor, $3,200, at the auction sale, became the purchaser of the property, and teat he had strictly complied with the requirements of the decree of sale. The commissioner also reported that after the day of the sale he had received an advance bid from J. W. Saunders of $3,600, which had been later increased to $4,000, and because of this upset bid the commissioner reported against the confirmation of the sale to Stowe.

Stowe excepted to this report, and filed the affidavits of eight persons fully supporting the contention that his bid, of $3,200 was the fair and adequate market value of the property. Other affidavits, two in number, were filed, indicating that it was worth $4,000 or more.

Upon consideration of the issue thus raised, the court confirmed the sale to the appellant at $3,200, and directed the special commissioner to convey the property to Stowe upon his payment of the balance of the purchase price.

The administrator then indicated his purpose to appeal from that decree, but did not do so.

On the 16th of January, 1928, during the January term, the administrator, who is the appellee here, filed his bill of review, praying that the November decree confirming the sale to Stowe be set aside and a resale of the property ordered, starting at the upset bid of $4,000 which had been already considered and rejected at the previous November term. The ground alleged was that errors of law appeared upon the face of the record, which justified setting aside the sale. He also alleged that he had learned since the decree confirming the sale that a rumor had been in circulation that the title to the property was not good, and that he had recently discovered that another party would probably have attended the sale and been a bidder but for that rumor.

The appellant demurred to the bill upon three grounds: (1) That no error of law appeared upon the face of the record of the case sufficient to maintain the bill, and that the specific errors of law alleged are insufficient to support it; (2) that, as to the alleged after-discovered evidence, it was admittedly based upon vague rumor, and was irrelevant and immaterial. He also averred that it would be a wrong to him and cause hardship, sacrifice, and loss, specifically, that his previous status could not be restored because he had been induced to buy from the same special commissioner (in another cause), on the same date, 208 acres of land adjacent to the 83-acre tract here involved, had complied with the terms of that purchase, and that he would not have bought that 208-acre tract unless he had believed that his bid for this 83-acre tract would be accepted and the sale confirmed to him.

Upon this issue the trial court overruled Stowe's demurrer to the bill of review, and required him to answer. At a later date, May 23, 1928, the court sustained the prayer of the bill of review, adjudging it to be a petition for rehearing, held that it had committed error at the present November term in rejecting the upset bid of Saunders and accepting the bid of Stowe, and therefore set aside and annulled that decree and directed a resale of the land. This is an appeal from that decree.

It is assigned as error that the court erred in overruling the demurrer to the bill of review and in ordering a resale of the property.

That the original decree confirming the sale to Stowe and rejecting the upset bid was, as to him, a final decree, there can be no doubt. Unless and until legally reversed, that decree definitely determined all of his obligations and rights of which the court then had jurisdiction.

What is said in Johnson v. Merritt, 125 Va. 181, 99 S. E. 785, is quite applicable:

"This decree was certainly a final decree so far as it affected the rights of Merritt and Burton as purchasers of the land. They had paid the money into the hands of the officer of the court directed to collect it, and if it was thereafter lost, from any cause, the loss would fall upon the parties entitled to receive the money and not upon the purchasers of the land. Pulliam v. Tompkins, 99 Va. 602, 39 S. E. 221; 2 Barton Ohy. 1092. Every question sought to be litigated by the bill had been decided, and the whole object of the litigation had been accomplished even down to the direction of the payment of the costs to the officers of the court. Nothing remained to be done except for the commissioner of the court to pay out as directed by the decree of September, 1912, the funds shown to be in his hands. No one had any interest whatever in this matter except the beneficiaries of that fund mentioned in the decree. If the money was not paid, they could have executions issued and recover it, and if it was lost, it was not the loss of the complainants. They had no manner of interest in the disbursement of this fund. The case, certainly so far as they were concerned, was ended, and the decree was none the less final as to them because the commissioner was directed to make a report to the court. Johnson v. Anderson,...