Thomas v. Caldwell
| Decision Date | 28 February 1903 |
| Citation | 34 So. 949,136 Ala. 518 |
| Parties | THOMAS v. CALDWELL. [a1] |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Bullock County; A. A. Evans, Judge.
Action by S. J. Caldwell, as administrator of the estate of G. M Hanson, against J. L. Thomas. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
R. E L. Cope and Jinks & Blue, for appellant.
When lands are sold by an executor or administrator, under the orders of the probate court, for division among the heirs, as the statute provides may be done (article 7, c. 3, of the Code of 1896) it is required, that the executor or administrator shall within 30 days after the sale, report on oath his proceedings to the court, who must examine the same, and may also examine witnesses in relation thereto, and if, on such examination the court is satisfied that the sale was not fairly conducted, or that the amount for which the land, or any portion of the same was sold, was greatly less than its real value, the court may vacate such sale, in whole or in part. Code 1896,§§ 173, 174.
If the sale is set aside, the court must direct another sale to be made, which must be advertised and conducted in all respects as before. Code, § 176. The statute does not prescribe, that it shall be made at the risk of the purchaser at the first sale, but this right to resell at his risk is a condition implied by law in every judicial sale, which condition becomes a part of every bid, and is incorporated by law into the contract of every successful bidder, by which he agrees that, in the event he fails to comply with the terms of the purchase, if accepted by the court, the land may be resold at his risk, and he will pay the difference arising on the second sale, together with the expenses of the same. Howison v. Oakley, 118 Ala. 215, 23 So. 810.
Here, it is shown by plaintiff's complaint, that under a decree for the sale of the lands mentioned, for division among the heirs, the administrator, in compliance with the terms of the decree, sold the same at public sale, on the 4th of April, 1901, and John L. Thomas, the defendant, and appellant, bid the same off at and for the sum of $305; that the administrator reported to the court the proceedings of said sale and the failure and refusal of the defendant to comply with his purchase according to the terms of sale, whereupon it was ordered and decreed that the price bid by the defendant be accepted and that said sale to him be, and the same was ratified and confirmed; and it was further ordered, that on account of defendant's failure and refusal to comply with the terms of his said purchase, by paying the amount bid, that plaintiff, as administrator, should resell said real estate in accordance with the terms of the order and decree of the court authorizing said first sale, which it is averred was done, on the 17th June, 1901, and one Keller bid off the property at and for the sum of $75, which last sale was reported to, accepted and confirmed by the court. This suit was instituted by the administrator to recover of defendant, the difference between the first and second sale, amounting to $230, together with $50, the costs and expenses of the second sale.
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Clark v. Whitfield
...decided by this court contrary to appellants' contention in our cases of Patten v. Swope, 204 Ala. 169, 85 So. 513, and Thomas v. Caldwell, 136 Ala. 518, 34 So. 949. confirmation the title and rights of the purchaser relate back to the date of the sale. He must bear the losses that interven......
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Patten v. Swope
... ... rent for 1918 that was payable and that was collected by E.C ... Swope (the purchaser) after the sale was had on October 21, ... 1918. In Thomas v. Caldwell, 136 Ala. 518, 522, 34 ... So. 949, upon the authority of Haralson v. George, ... 56 Ala. 297, it was decided that a purchaser at such ... ...
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Walden v. Walden
...back to the date of the sale. Clark v. Whitfield, 218 Ala. 593, 119 So. 631; Patten v. Swope, 204 Ala. 169, 85 So. 513; Thomas v. Caldwell, 136 Ala. 518, 34 So. 949. Under this rule, D. A. Walden, Jr. became the holder of record title under the order confirming the sale, and the burden was ......
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Barnett v. Alabama Power Co.
...*** though the confirmation, when made, relates back to the day of sale, and the purchaser's rights then attach." Thomas v. Caldwell, 136 Ala. 518, 34 So. 949; Patten v. Swope, 204 Ala. 169, 171, 85 So. But having the mere naked title to property does not impose liability for its wrongful o......