Vauss v. Thomas

• Decision Date: 26 June 1947
• Docket Number: 6 Div. 540.
• Citation: 31 So.2d 502,249 Ala. 449
• Parties: VAUSS v. THOMAS.
• Court: Alabama Supreme Court

31 So.2d 502

249 Ala. 449

VAUSS v. THOMAS.

6 Div. 540.

Supreme Court of Alabama

June 26, 1947

Rehearing Denied July 31, 1947.

Cabaniss & Johnston and K. E. Cooper, all of Birmingham, for appellant.

G R. Harsh and Oliver Henderson, both of Birmingham, for appellee.

GARDNER Chief Justice.

By decree of May 7, 1946, real estate (house and lot) jointly owned by the parties to this suit was ordered sold for division. On August 19, 1946, the sale was confirmed. On August 31, 1946, motion was made to set aside the sale, which mortion was denied November 7, 1946. January 1, 1947, Willie Vauss, one of the defendants, prosecuted this appeal and is represented by counsel who were not in any manner connected with the case prior to the appeal.

So far as the first decree rendered in the cause of May 7, 1946, it was final as to all the equities of the parties, that is the joint ownership, the one-sixth interest of each in the property, and the necessity for a sale for an equitable divisionv of the proceeds. But as to the matter of procedure the method of making the sale and the like, the decree was interlocutory and subject to modification as the court may deem best. McCalley v. Finney, 198 Ala. 462, 73 So 639; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502. The appeal is, therefore, from the decree of confirmation rendered August 19, 1946, which is a final decree, upon consideration of which the interlocutory nature of the decree of sale is subject to review. Pettit v. Gibson, 201 Ala. 177, 77 So. 703. All matters of record are proper to be considered and constitute a part of the decree. 30 C.J.S., Equity § 644, page 1072.

The report of the Register shows a sale of the property to Mrs. Neoma Henderson for $600 and the assumption of any unpaid ad valorem taxes and the municipal improvement assessments. The motion to set aside the sale discloses that the purchaser was the wife of the attorney for complainant and that she, the purchaser, within a few days after the sale, entered into a lease-sale contract with complainant for said property at a price of $2,250. This contract is set out as an exhibit. Though it runs for a mumber of years, yet it discloses that the rights of Mrs. Henderson are well protected.

From the decree there was to be subtracted from the proceeds $100 attorney's fee for complainant and the costs of the proceeding. The remainder was to be held pending settlement of the estate of Mamie M. Vauss, deceased, of which complainant appears to be administratrix. As we read the original decree the stipulation therein as to holding these proceeds pending settlement of said Mamie M. Vauss administration was pursuant to agreement of the parties. The parties to this proceeding are negroes, but were represented by competent counsel. Counsel for appellee insist there were no exceptions made to the report and if appellant or his counsel were not present at the sale, as the motion avers, it was a matter of their own neglect. And we are cited to the generally accepted authority in the matter of confirmation of a sale that one will not be protected from the result of his own inexcusable neglect. 40 Am. Jur. 75; Helena Coal Co. v. Sibley, 132 Ala. 651, 32 So. 718.

The motion states a valuation of the property as high as $3,000. But there was evidence taken before the court on this motion which is not here set out and we must indulge presumption that it was favorable to the lower court's conclusion though it must be conceded that upon its face the sale transaction bears some element of unfairness. However that may be, if the case rested solely on the matter of inadequacy of price, relief should be denied. Spence v. Spence, 239 Ala. 480, 195 So. 717.

We are persuaded, however, there is error apparent upon the record which probably injuriously affected the substantial rights of these joint owners, of which appellant is one. Of course, as observed by the court in Whitehead v. Boutwell, 218 Ala. 109, 117 So. 623, 626, the sale being made by the court on behalf of the owners, the court should be and is interested to see that this property 'brings its best price when exposed for sale by order of the court.'

And looking to this end the record must be viewed from the standpoint of the prospective purchaser. Illustrative of this concern of the court as to a proper sale and a fair price and full competition in bidding, it was said in McCalley v. Finney, supra, speaking of an incumbrance upon the property by the complainant of her interest therein after the commencement of the proceeding: 'We are not here so much concerned with the legal phase of the situation regarding the rights of the mortgagees acquired pending the suit; but conceding, for the purpose of this case, that these incumbrances were taken subject to the pending litigation and are therefore in subordination of any interest a purchaser at a judicial sale may acquire, yet if the existence of these incumbrances is calculated to produce distrust or confusion in the lay mind--in the mind of the business man seeking an investment of this character--then it would be the duty of the court, as far as within its power, to remove these obstacles to free bidding and a fair sale.' [198 Ala. 462, 73 So. 641.]

There was one time a view that our previous cases would be interpreted as requiring a decree of sale of this character to designate the day on which the sale was to be had. But this court in Lavretta v. First National Bank of Mobile, 238 Ala. 265, 189 So. 881, set at rest this contention by holding that the authorities were not to be so construed, stating that the intention of the court was merely to require the decree to direct the Register as to the time, place and terms of the sale, the word 'time' having reference to period of publication of the notice and not the particular day. See, also, Parker v. Clayton, Ala. Sup., 29 So.2d 139. The decree here involved meets that requirement. Further illustrative of the mind of the court that important matters in regard to the conduct of the sale should not be left to the undirected judgment and discretion of the Register is to be found in Harvey v. Jenkins, 219 Ala. 121, 121 So. 419, from which opinion we take the following excerpt, as here pertinent: 'The decree rendered should direct the register as to the time, place, and terms of sale; that the property be sold for cash; or prescribe the terms upon which the same should be sold. If on credit, indicate a reasonable time for installment payments, and require proper security for the payment of balance of the purchase money so deferred, and provide for conveyance on full payment. The parties at interest had the right to be so advised by the decree of sale and not have so important a matter left to the undirected judgment and discretion of the register, as may be affected by circumstances at the time, or suggestions of prospective purchasers attending the sale.'

As said by the Illinois court in Metheny v. Bohn, 74 Ill.App. 377: 'Where a sale is ordered, the decree shall clearly define, declare and dispose of all the interest and claims to the premises in order that purchaser may not be prevented from bidding at the sale on account the court has inadvertently or otherwise, omitted these essential points in the decree.' And this same court in the earlier case of Kilgour v. Crawford, 51 Ill. 249, held it error to reverse for the decree to omit reference to the mortgage which was referred to in the bill in the decree ordering the sale. The court concluded, speaking of the prospective purchaser: 'In this uncertainty, it is evident the sale of the premises would be greatly impaired.' As to the mortgage designated in the bill, doubtless in the absence of the mortgagee the court could not affect its interests. 47 C. J. p. 482. Nevertheless, the bill disclosing the existence of the mortgage and seeking a sale subject thereto, the Court in the decree should give some direction concerning it for the benefit of the purchaser. We entertain the view that this decree of sale does not conform to these requirements. The bill discloses that the property sought to be sold is incumbered with a mortgage of $293, speaking in round numbers; it is further alleged that since the death of the mortgagor, Mamie M. Vauss, that complainant has made the monthly payments as they became due to the mortgagee. The bill further discloses that the complainant had been appointed administratrix of the estate of Mamie M. Vauss, and that she is desirous of settling the estate within the time prescribed by law. As such administratrix, however, she is not a party to the bill; it is filed in her individual name as an heir and as an heir only. The prayer of the bill was that the property be sold subject to the incumbrance above mentioned and that compl...