Syndicate v. Johnson

• Decision Date: 11 December 1902
• Citation: 42 S.E. 995,100 Va. 774
• Parties: NITROPHOSPHATE SYNDICATE, Limited, OF LONDON, ENGLAND. v. JOHNSON.
• Court: Virginia Supreme Court

42 S.E. 995

100 Va. 774

NITROPHOSPHATE SYNDICATE, Limited, OF LONDON, ENGLAND.

v.JOHNSON.

Supreme Court of Appeals of Virginia.

Dec. 11, 1902.

MORTGAGE—FORECLOSURE SALE—SETTING ASIDE—VALUE OF PROPERTY—CONTRACT TO RESTRICT BIDDING.

1. Where a foreclosure sale made by commissioners appointed by the court has been absolutely confirmed, it will not be set aside except for fraud, mistake, surprise, or other cause for which equity would give like relief if the sale had been made by the parties in interest.

2. After full notice of a foreclosure sale, and an open sale, fairly conducted, with such competition as can be attracted by full and sufficient notice, the highest bid which is made is a fair criterion of the value of the property at the time.

3. A contract made for the purpose of lessening competition at a judicial sale on foreclosure is illegal, and will not be enforced.

Appeal from circuit court of city of Norfolk.

Petition by the Nitrophosphate Syndicate, Limited, of London, England, asking that a sale of foreclosure to Jessie C. Johnson be set aside. From a decree refusing the same, petitioner appeals. Affirmed.

Wm. E. Bibb and Leake & Carter, for appellant.

Starke & Starke and W. W. Old & Son, for appellee.

HARRISON, J. This attachment proceeding in equity was instituted by the Industrial & General Trust, Limited, of London, England, a corporation created under the laws of Great Britain, against the Nitrophosphate Syndicate of London, England, another corporation, created under the laws of Great Britain, to foreclose a mortgage in favor of the plaintiff upon certain properties; among others, a tract of land in the county of Norfolk, Va.

After full advertisement of the property for eight consecutive weeks, the land in controversy, in Norfolk county, was sold at public auction on April 2, 1896, to the appellee, Mrs. Jessie C. Johnson, of Baltimore, Md., at the price of $37,000; her husband, Green leaf Johnson, having made the bid for her. When this sale was reported to the court for confirmation, Messrs. Neely, Seldner, and Warrington, attorneys, appeared for the debtor company and Boyd M. Smith, the sole representative and general manager of that company-in this country, who was, by appointment of the court, acting as receiver of the property pending a sale, and filed exceptions to the report of sale. After some days given the exceptants in which to obtain an upset bid, the court received from Messrs. Neely, Seldner, and Warrington, their attorneys, the following communication: "To Honorable Robert R. Prentis, Judge of Circuit Court of Norfolk County—Dear Sir: in lieu of a personal appearance, we beg to inform the court that, so far as we are informed, an effort to obtain an upset bid in the Nitrophosphate Case has failed to secure such bid." Thereupon, on the 28th day of May, 1896, the exceptions were overruled, the sale to the appellee confirmed, and the same special commissioners directed to collect the purchase money, pay the same over to the parties entitled thereto, and to execute and deliver to the purchaser a deed of conveyance for the property. Mrs. Johnson paid the whole of her purchase money in cash, and a report was made in due time by the commissioners, supported by proper vouchers, showing that the fund had been disbursed, and all the requirements of the decree of May 28th carried out. This report was confirmed by decree of November 11, 1890, which ended the cause, and directed that it be stricken from the docket. Subsequently, at the same term of the court, on motion of Boyd M. Smith in his own right and as receiver, so much of the decree as removed the cause from the docket was set aside, and upon his further motion he was made a party plaintiff, and the cause retained on the docket at his cost, with leave given him to file a petition within 60 days.

The foundation of the present litigation is a petition filed by the appellant, the Nitrophosphate Syndicate, Limited, in which it asks that the sale to the appellee, Jessie C. Johnson, be set aside upon the ground that she had bought the property at an inadequate price, and procured a confirmation of the sale by fraud. To this petition appellee filed an answer, denying that the sale had been in any respect unfair, or that she had been guilty of fraud in obtaining a confirmation of the sale to herself. An answer to the same effect was filed by Greenleaf Johnson, the husband of appellee, who had been made a party.

The sale was made by the learned counsel, acting as commissioners, who represented the parties most vitally interested in the result, after an unusually extensive and expensive advertisement of the time, place, and terms of sale, and appears to have been in all respects conducted with perfect propriety and fairness to all concerned.

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