Va. Fire & Marine Ins. Co v. Cottrell

• Decision Date: 14 March 1889
• Citation: 9 S.E. 132,85 Va. 857
• Court: Virginia Supreme Court
• Parties: Virginia Fire & Marine Ins. Co. et al. v. cottrell.

9 S.E. 132

(85 Va. 857)

Virginia Fire & Marine Ins. Co. et al.

v.cottrell.

Supreme Court of Appeals of Virginia.

March 14, 1889.

Judicial Sales—Rescission.

A sale of land in which plaintiff was interested as tenant in common was ordered by the court, and a bid made by the defendant was accepted, and the sale absolutely confirmed, the terms of the sale being part cash and two deferred payments. Held, that a petition by the plaintiff for the rescission of the sale should not be granted because the terms of the sale had not been complied with upon its confirmation, or because the value of the land had considerably increased before such compliance on account of the discovery of certain mineral deposits in adjacent land, no fraud being shown on the part of the defendant, and the latter tendering, the day before the first deferred payment fell due, the cash payment, with interest from the date of the sale, and offering to comply with the requirements as to the deferred payments.

Appeal from circuit court, Henrico county.

This was an appeal from a decree of the circuit court of Henrico county, rendered in a suit wherein the Virginia Fire & Marine Insurance Company and another were plaintiffs and John W. Cottrell was defendant. The suit, which was removed to that court from the circuit court of Goochland county, was brought for a partition of a certain tract of land situate in the last-mentioned county, known as "Sycamore Grove, " and of which the plaintiffs and defendant were seised as tenants in common. The tract contained 388 acres, and adjoined another tract of land known as "Carbon Hill, " which was owned by the appellee the Richmond Coal.Mining & Manufacturing Company, being separated therefrom by Tuckahoe creek. It appearing in the progress of the cause that partition of the land was impracticable, a decree was entered for its sale, and John H. Guy and A. K. Leake, Esqs., were appointed special commissioners to make the sale. The commissioners, in their printed advertisements, of sale, described the land as "situate in the coal basin of Virginia, and said to be rich in minerals." And as an additional inducement to bidders the land was further described as adjoining "the Carbon Hill coal mines which are now in operation." The sale was made on the 31st of May, 1887, at public auction, all the parties in interest being present. The commissioners reported to the court that the land had been knocked out at the sale to the Richmond Coal Mining & Manufacturing Company, at the price of $2,650. The report then proceeds as follows: "Although the purchaser has not yet complied with the terms his [its] counsel state that they will be fully complied with, and as the term of the court is drawing to a close, and the sale is an excellent one in the opinion of your commissioners, they advise that the sale be confirmed, and your commissioners be authorized to carry out its terms." Those terms were one-third of the purchase money to be paid in cash, the balance on a credit of six and twelve months, to be evidenced by the negotiable notes of the purchaser, bearing interest from the day of sale, and the title to be retained until the purchase money should be fully paid. The report, to which there was no exception, was tiled, and by consent was acted upon at a special term of the court on the 23d of July, 1887, when the report was absolutely confirmed. The language of the decree of confirmation is that "the court doth confirm the said report and the sale therein mentioned to the Richmond Coal Mining & Manufacturing Company, and said special commissioners are directed to carry out the sale by collecting from the purchaser the cash installment of the purchase money, and taking its notes for the deferred payments." And then the decree goes on to provide that, "should the purchaser fail to comply with the terms within twenty days from the date of this decree, then the clerk of this court shall, upon the application of said special commissioners, issue a rule against the purchaser, returnable to the first day of the next term of the court, requiring it to appear and show cause why the land should not be resold at its risk." This rule was executed by delivering a copy thereof to the secretary and treasurer of the Richmond Coal Mining & Manufacturing Company, but no further action appears to have been taken upon it. It is admitted, however, that on the return-day of the rule the counsel of the company appeared in court, and announced his readiness to answer, although no offer to comply with the terms of sale was then made. On the 29th of November, 1887, the company, through its agents, tendered to the commissioners the cash payment, with interest thereon to that time, and also the amount of the first deferred payment, in lawful money, and its note for the amount of the second and last deferred payment, dated May 31, 1887, and payable 12 months after date, to the order of the commissioners, but the tender was not accepted. On the following day the court, not having been informed of the tender that had been made, issued another rule against the company, returnable on the 5th day of December, 1887, requiring it to appear and show cause why the sale should not be rescinded. To this rule the company filed its answer, averring its readiness to fully comply with the terms of sale, and making to the court the same tender that had been previously made to the commissioners. It was also averred that the company, by its counsel, appeared on the first day of the term to comply with the terms of sale, but that, in the absence of the plaintiffs, nothing was done, and that it would have complied with the terms at any time after the confirmation of the sale, if it had been required to do so.

The plaintiffs filed a written application in the nature of a petition, praying that the property be again exposed for sale at public auction. It was averred as the ground of the application that since the confirmation of the sale there had been discovered on the Carbon Hill property, a vein of coke of great ' value, which it was believed extended to the Sycamore Grove property only a few hundred yards distant, and that it was the belief of the plaintiffs that this discovery had led to the then proposed application of the purchaser to be allowed to complete its purchase after its long standing delinquency. And they offered to furnish such security as the court might require that at another sale, if ordered by the court, they would make a bid equal to the amount of the first sale, with interest and costs added. Sundry affidavits were filed to the effect that the discovery of the vein of coke above mentioned had enhanced the value of the Sycamore Grove tract to an extent far beyond the price for which it had been sold. The court, however, when the cause came on to be heard, entered a decree allowing the purchaser to complete its purchase, and discharging the rule, whereupon the Virginia Fire & Marine Insurance Company, one of the plaintiffs, obtained an appeal to this court.

W. W & B. T. Crump, for appellant.

Quy & Qilliam, for appellees.

Lewis, P., (after stating the facts as above.) One of the modes by which a purchaser at a judicial sale may be compelled to complete his purchase is by a rule to show cause why the property should not be resold at his risk; and in such a case, when a resale is ordered, the former sale is not set aside, but the property is sold as the property of the purchaser. If it brings more than the debt, he is entitled to the surplus; if it brings less, he is held responsible for the deficiency. Clarkson v. Read, 15 Grat. 288. But a proceeding to rescind a sale which has been absolutely confirmed ought to be not less formal than by a petition in the cause setting forth distinctly the grounds upon which the application is based, in order that the purchaser or other adverse parties to the proceeding may see clearly what they have to meet. A summary rule to show cause is not sufficient. In the present case, however, according to the liberal practice which prevails with us in courts of equity, the written application, as it is termed in the record which was filed by the plaintiffs in the court below, praying that the property be again offered for...