Threadgill v. Colcord
| Decision Date | 14 February 1906 |
| Citation | 1906 OK 12,16 Okla. 447,85 P. 703 |
| Court | Oklahoma Supreme Court |
| Parties | JOHN THREADGILL v. CHAS. F. COLCORD, Receiver of the Oklahoma Woolen Mills, a corporation. |
¶0 1. RECEIVER'S SALE--Can be Conducted by a Master in Chancery or Auctioneer Appointed for That Purpose. Under the laws of this Territory where a receiver is appointed by the court, and at the time fixed for the sale the said receiver is necessarily absent from the place of sale, on application of the receiver or any party in interest, the court may appoint an agent for the purpose of conducting the sale; and that sale so made, if otherwise regular, will be confirmed, and such agent will not be required to take oath or give bond, unless so directed by the order appointing him.
2. NOTICE TO BE GIVEN IN RECEIVER'S SALES. The statute in relation to the notice to be given in case of sales under execution does not govern in case of receiver's sales. If the court in the decree authorizing the sale orders that notice be given, a compliance with such order is all that is required.
3. OBJECTIONS TO THE APPOINTMENT OF RECEIVER--When Should be Made, and How--Who Estopped from Making. A plaintiff who has filed a petition in a court of competent jurisdiction against certain defendants asking to have a receiver appointed, and such receiver is appointed without objection, and the sale is made by said receiver, or by some agent appointed by the court for him, and at such sale the plaintiff is a bidder, and the property is sold to him under his bid, such plaintiff is presumed to take notice of all proceedings and orders taken or made in the case, and is estopped from questioning the appointment of the receiver, or the agent to sell said real estate, in a collateral proceeding.
4. DECREE OF COURT--Collateral Attack--Estoppel--Pleading and Practice. When a purchaser at a master's sale under a decree is himself a party to the suit in which the decree was entered, he cannot in a collateral proceeding raise a question as to the irregularity of the decree, but if the decree is irregular so that the purchaser will not get a good title to the premises purchased by him, his remedy is to apply to the court directly to set aside the decree on that ground.
5. RECEIVERS SALE--Validity--Reversal of Case. Though the case in which the receiver was appointed might subsequently be reversed on appeal, such reversal would not affect the sale if the court had jurisdiction to render the decree, and the fact that the plaintiff in the suit in which the receiver was appointed was himself the purchaser at the receiver's sale would not alter the case. The general rule is that a purchase at a decretal sale made by a court of competent jurisdiction is valid, unless the decree be void, although it may be reversed.
6. CONFIRMATION OF SALE--Order Sufficient, When. In a receiver's sale, where a report of sale is made and filed in the court from which the decree issued, and a motion is made to set aside the sale, and the court after hearing argument of counsel and considering the motion to set aside the sale overruled the motion, and thereupon entered an order that the bidder pay into the hands of the clerk of the court the amount of his bid, and that the receiver make, execute, and deliver to the bidder a deed conveying the real estate purchased, this amounts in law to a confirmation of said sale, although the court does not say in express language, "I hereby confirm the sale." The order made by the court amounts legally to the same thing, and recognizes the validity of the sale.
STATEMENT OF FACTS.
In this case, the plaintiff in error, John Threadgill, was the purchaser at a receiver's sale of certain property formerly belonging to the Oklahoma Woolen Mills, of which Charles F. Colcord, the defendant in error, had been appointed receiver. The receiver's sale was made under and by virtue of an order of the judge of the district court in and for Oklahoma county, the said order being made on the 18th day of May, 1904. The receiver caused the property ordered by the court to be sold to be advertised for sale in the Daily Oklahoman, and Times Journal, two daily newspapers of general circulation, published in Oklahoma county. The plaintiff in error, Threadgill, was a stockholder in the Oklahoma Woolen Mills, and was the plaintiff in the case in which the receiver was appointed. On the day of the receiver's sale, Messrs. Grant & McAdams, as agents and attorneys for Threadgill, appeared at the sale and bid for the property the sum of twelve thousand dollars ($ 12,000.00) and this being the highest and best bid then offered, the master, or auctioneer appointed to conduct such sale, declared said property sold to the plaintiff, and immediately demanded of him the payment of the amount of his bid. The plaintiff asked for further time to examine the records as to the title, which was granted. Subsequently, Threadgill, the plaintiff, refused to perform the condition of his bid, and to take the property, claiming that the appointment of the receiver in the case, and the conduct of the sale was irregular, and not in accordance with the statute. On the 20th day of July, 1904, the plaintiff herein moved the court in the case in which the receiver had been appointed, to set aside the receiver's sale. This motion the court denied and ordered that Threadgill pay into the hands of the clerk of the court the sum of twelve thousand dollars, the amount of his bid for said property, and that upon such payment, the receiver make, execute and deliver to Threadgill a deed conveying the property purchased by him at said sale. Upon said order being made by the court, the plaintiff Threadgill refused to comply with such order, whereupon the court ordered that the receiver of the Oklahoma Woolen Mills, Charles F. Colcord, commence an action against Threadgill to recover the amount of the bid. On the 12th of September, 1904, in accordance with the order made by the court in the case in which the receiver was appointed, an action was commenced in the district court of Oklahoma county by the receiver of the Oklahoma Woolen Mills against John Threadgill, for the recovery of the amount of his bid, and a petition setting up the facts was filed herein to which petition the defendant filed an answer, after which, plaintiff moved for judgment on the pleadings, which motion was granted by the court and judgment rendered in favor of the receiver, and against the plaintiff in error, Threadgill, for the sum of twelve thousand two hundred and seventy and 66/100 dollars (12,270.66), being the amount of the bid on said property, together with seven per cent. interest thereon from the date of the sale. To which finding and judgment, plaintiff in error, Threadgill, excepted, and takes his appeal to this court, and brings the matter here for review.
Error from the District Court of Oklahoma County; before Bayard T. Hainer, Trial Judge.
W. F. Wilson, and Grant & McAdams, for plaintiff in error.
Flynn & Ames, and Hays, Thorp & Thorp, for defendant in error.
¶1 The first assignment of error is that the said Charles F. Colcord was not eligible as receiver of the Oklahoma Woolen Mills, because a stockholder and director of the corporation, and because a party to the action in which the said receiver was appointed.
¶2 Second, that the property was not advertised for sale in accordance with the provisions of the Statute of Oklahoma, relative to judicial sales; third, that the sale was made by a master, or auctioneer, instead of the receiver himself, and that such master or auctioneer gave no bond and took no oath before entering into the discharge of his duties; fourth, that the sale to Threadgill had never been confirmed by the court, as charged in the order of sale.
¶3 We will take these assignments of error up in their inverse order. The fourth assignment of error, to wit: That the sale to Threadgill had never been confirmed, and that for this reason no case could be brought for the purchase money. In answer to this contention, we refer to the record as shown by the case made at page 14, and by this record we find that on the 20th day of July, 1904, the cause came on to be heard in the district court on the motion of plaintiff in error, John Threadgill, who represented that he was a bidder at the sale of the property in controversy, and moved the court to set aside said sale. The court after hearing the argument of counsel, and considering said motion, overruled the same, to which ruling the said John Threadgill, by his attorneys, then and there excepted, and it was ordered by the court that the said John Threadgill pay into the hands of the clerk of this court the sum of $ 12,000.00, the amount of his bid for said property, and upon such payment the said receiver should make, execute and deliver to the said John Threadgill a deed conveying to the said John Threadgill the real estate purchased by him at said sale. Now we think that this order amounts to an order confirming the sale. It is true, that the court in making the order did not say in express language, "I hereby confirm this sale," but he did say that the motion to set aside the sale should be overruled, and he did say that the motion to set aside the sale should be overruled, and he did say that the bidder should pay the amount of his bid into the clerk of the court and that upon such payment that the receiver should make, execute and deliver a deed for the property sold at that sale. This we think, in law, is equivalent to an express declaration confirming the same, because it was an express recognition of the validity of the sale, and an order that the necessary steps should be taken to convey the title. From this order there was no appeal by the plaintiff in error Threadgill.
¶4 The third assignment is that the sale was made by a master or auctioneer, instead of the receiver himself, and that such master or auctioneer took no oath, and gave no...
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