Vance's Adm'r v. Foster

• Decision Date: 24 March 1872
• Citation: 72 Ky. 389
• Parties: Vance's administrator v. Foster & Ray.
• Court: Kentucky Court of Appeals

72 Ky. 389

Vance's administrator v. Foster & Ray.

Court of Appeals of Kentucky.

March 24, 1872

APPEAL FROM MARION CIRCUIT COURT.

W. J LISLE, For Appellant,

CITED

Code of Practice, section 426.

Story on Sales, section 300.

Littell's Select Cases, 217.

7 Dana, 60 4 Bibb, 66

14 B. Mon. 413 6 Dana, 49.

2 B. Mon. 411. 3 Met. 544.

2 Duvall, 332.

HARRISON & KNOTT, For Appellees,

CITED

3 Dana, 622. 2 B. Mon. 411.

3 Met. 544, Taylor v. Gilpin.

5 B. Mon. 494, Dale v. Shirley.

12 Beavan, 260, Robertson v. Skelton.

1 Sm. & G. 241, Paramar v. Grenstade.

OPINION

HARDIN CHIEF JUSTICE:

The Marion Circuit Court having in the suit of J. J. Vance's administrator against said Vance's heirs and creditors adjudged a sale of certain real and personal estate to satisfy the decedent's debts, the commissioner appointed to make the sales proceeded to do so, in conformity to the judgment, on the 4th day of March, 1872, and thereupon sold in several distinct parcels, as personal property, the machinery of a planing-mill, most of which was purchased by the appellees, Foster & Ray, who agreed to but did not execute bond for the aggregate amount of their purchases, nor did they take actual possession of the machinery, for the reason that the sale was made subject to the rights of one Ricketts, who as lessee of the mill was entitled to the use of the machinery for near one month succeeding the sale.

It appears that about six days after the sale, and while it was understood between the commissioner and the appellees that they would comply with the terms of their purchase, the most valuable part of the machinery was accidentally destroyed by fire; and afterward, and for that reason, the appellees refused to give their bond or pay the prices at which they had become the accepted bidders for the property.

Afterward, in June, 1872, the commissioner having made his report of sales, a rule was laid on the appellees, at the instance of Vance's administrator, in effect requiring them to show, if they could, why they had failed to comply with the terms of their purchase. To that rule the appellees responded, relying for their exoneration on the partial destruction of the property by fire before the sale had been confirmed or the actual possession had been changed. The issue thus presented, whether the loss occasioned by the burning should be borne by Vance's estate or the appellees, was tried by the court and decided in favor of the latter; consequently the court refused to confirm the sale, and discharged the rule. From that judgment this appeal is prosecuted.

There is no contrariety of evidence as to the terms of the sale of the machinery; nor is it pretended that the sale was not fairly and regularly made, and such a sale as ought to have been confirmed if the property had not been partially destroyed. The essential inquiry to be determined therefore is, did the appellees by their purchase acquire such a right to the property and incur such correlative responsibility as to render it equitable and just to confirm the sale, and coerce a compliance on the part of the appellees with the terms of their purchase, notwithstanding the accidental loss of part of the property?

If it be true, as contended for the appellees, that...