Allen v. Martin

61 Miss. 78

Opinions

Cooper, J.,

delivered the opinion of the court.

The objections interposed to the confirmation of the sale are four: first, because the lands were sold at a grossly inadequate price; second, because an agreement was made between the purchaser and several of the parties in interest in the land, that in the event the property should be bought by the individual who subsequently did buy, these persons should have the option to pay a proportionate part of the amount bid, and upon so doing should retain the same interest in the lands as that which they before had held; third, because by reason of a belief existing in the minds of the public that the exceptors, or some one or more of them, would appear at the sale as bidders and buy in the property at its full value, other persons failed to appear as bidders at the sale; fourth, because the exceptor, Martin, was prevented by important business from returning from New York to attend the sale and employed an agent to attend and bid for the property the sum of twelve thousand dollars, which the agent neglected to do. Another ground of objection, not ¡specifically assigned in the court below, but probably considered ex mero motu by the Chancellor, is that one of the co-owners of the property was a minor, whose father, through whom he inherited the land, had died since the rendition of the decree for sala

We think it may be fairly said that on the whole evidence it is reasonably clear that the value of the property is from two to four times the price at which it was sold. Its chief value is derived from the existence of a medicinal well, and though for this reason it may be said that the profit to be derived by the owner is of a speculative and uncertain nature, yet a real and approximately definite value is thereby given to the land. The fact, however, that the property is worth at least double the amount for which it was sold is fixed, as to this suit at least, by the offer of the exceptor, Martin, to give for each parcel of the land twice the amount at which it was sold, and by his entering into bond at the requirement of the Chancellor conditioned to appear and bid such sums.

We are unable to see anything in the agreement made between Allen, the purchaser, and Wells and Williamson and Baldwin, the attorneys of some of the co-owners, calculated to cause a sale of the property for a less amount than' it would otherwise have brought, or tending in any manner to the injury of the exceptors. It is affirmatively shown that the clients of these attorneys were poor people unable to purchase the property, that none of them were present at the sale, and that their attorneys were not authorized to make any offers, for any portion of the property to be sold. It is further shown that after the agreement had been made, these attorneys induced, or tried to induce, other persons to bid upon the lands, and did nothing to prevent a fair sale at full prices. It further appears that at the suggestion of Mr. Baldwin, the sale was postponed until after the hour at which one leaving Vicksburg, where the exceptors live, would reach the ground; that a telegram was sent to Mr. Klein, at Vicksburg, inquiring whether they ■desired and expected to be represented, and one to Messrs. Calhoon & Green, their attorneys at Jackson, to the same purport. To the one sent to Klein a reply was received that the Vicksburg parties were out of town, and would have no representative on the ground, and Messrs. Calhoon & Green replied that they had no authority to act in the matter. It was only after all this had been done that the property was exposed to sale. There were many persons on the ground, a number of whom were able to have bought all the property, and some of them other than the purchaser made bids for several of the parcels. Mr. Baldwin states that he thinks there were from five to twenty bids for each parcel offered. We find nothing in the mode of conducting the sale, and nothing which was done by any of the parties or their attorneys, which is calculated to throw the slightest suspicion of unfairness upon it.

The existence of a belief on the part of some of the public that the owners, or some of them, would appear at the sale and buy in the property, unless it should bring a fair price, is entirely too indefinite and unsubstantial. If this should be deemed a sufficient ground for refusing confirmation of a sale for partition, it is difficult to conceive when such sales would be confirmed, save only in those cases in which the owners were unable to protect their property from sacrifice by reason of their poverty. It is a natural presumption that the owners of property sold for partition will protect it as far as is practicable from sacrifice by themselves appearing as bidders at the sale, but if this is ground for objection by the other co-owners to the sale when made, it would follow that no sale could ever be confirmed unless either the property had brought its full or approximate value, or the owners had invited a sacrifice by publicly giving notice that they would not appear as bidders. The fourth exception is wholly unsupported by evidence. Martin, it is true, made oath to the exceptions filed by him,, but this he was not required by law to do, and the addition of the oath gives them no force whatever as testimony.

Laying out of consideration for the present the fact that one of the owners was an infant of tender years, we have a sale stripped of all objections save that the property was sold at an inadequate price. Is this sufficient to authorize a re-sale of the property.? Though the courts of many of the States have iterated and reiterated the proposition that mere inadequacy of price is not sufficient to justify a refusal of confirmation, an examination of a great number of the eases discloses the fact that where this inadequacy exists to any marked extent, the courts have been swift to seize upon exceedingly attenuated reasons, excuses, or pretexts to refuse confirmation. In England sales made by a commissioner are treated as if made by the court itself. A bidder acquires no right but to have his offer considered by the court, and to accept or refuse the offer lies wholly within the power and discretion of the Chancellor. A mere offer to advance the bid is sufficient to produce an order for a re-sale. But this rule of the English courts has not been adopted in the States of this Union. With us the sale partakes somewhat of the nature of a sale in chancery under the English practice, and somewhat of that of a sale under execution at law. Until confirmation the sale is in fieri and subject to the control of the court, but this control is a judicial, not an arbitrary one, and confirmation must follow unless there exists some reason recognized by law as warranting a refusal to confirm. A bidder at a sale in chancery assumes certain obligations which he must discharge, he submits himself to the jurisdiction of the court, and becomes a party to the cause in which the sale has been decreed, and he may be compelled to stand by the offer he has made. On the other hand, he acquires certain legal rights which are to be as much protected and enforced as are other rights of other persons. He is entitled not only to ask but to have confirmation if there is no reason valid in law for refusal. Henderson v. Herrod, 23 Miss. 434; Swofford v. Garmon, 51 Miss. 348; Johnson v. Cooper, 56 Miss. 608. The proposition, that inadequacy of price alone, where it is not so gross as to raise per se a presumption of fraud, will not prevent a confirmation of the sale, seems to be generally, if not universally, announced by the American courts, and such has been declared to be the law in this State. Henderson v. Herrod, ubi supra; Mitchell v. Harris, 43 Miss. 314; Redus v. Hayden, 43 Miss. 614; Swofford v. Garmon, 51 Miss. 348. It is true, as suggested' by counsel for theappellees, that in each of these cases confirmation was refused, but it was refused not because the price was inadequate but because of the existence of other facts which warranted a refusal to confirm, and the court in each case emphatically declared that inadequacy of price alone would not be sufficient to justify a refusal of confirmation.

It is too late for us to consider whether the English rule as to opening the bids on the offer of an advance in price is not the fairest and most equitable; with one voice the American courts have repudiated it, but with a strange inconsistency have evaded rather than enforced the one declared by them to exist in its stead. We think the rule that inadequacy of price alone will not be sufficient to cause a rejection of the sale ought either to be enforced or repudiated. It ought not to stand as an invitation to confidence, and its effect escaped by finding. on insufficient evidence the existence of other circumstances, which when found will justify a refusal to confirm. There- is this marked difference between the English and the American rule that while under the one the rights of the owner, under the other those of the purchaser, are considered of paramount importance. If it may be doubted which of the two rules is the better, it is certain that the poorer one steadily adhered to is better than the better one enforced occasionally or not at all,

We have found only one case in which a sale rejected by the Chancellor has been confirmed by the appellate court, that of Comstock v. Purple, 49 Ill. 158 ; but because it has not been done is no reason why it shall not be done in a proper case. The inadequacy of price was not sufficiently great to raise a presumption of fraud, and we find nothing in the record warranting a rejection of the sale at the instance of the adult co-owners. It appears, however, that one of the tenants in common is an infant of tender years, and because he is, the court of chancery, which is the universal guardian of all infants, should jealously protect his interest. Because of his want of capacity to protect himself a different and broader protection is afforded to him by the court than is given to those capable of guarding their own interests. As between the adult owners and the purchaser, the rights of the purchaser are superior, as between the purchaser and the infant those of the infant must prevail. Because to confirm the sale would be prejudicial to the infant, the Chancellor rightly refused to confirm it as to his interest in the land. We do not, however, think it proper that the purchaser should be deprived of the whole benefit of his purchase. There is no ground for rejecting the sale as to the adults, and though for the protection of the infant the sale cannot stand as to his interest in the property, it is not necessary that it shall be wholly rejected. The exceptors cannot through the protection afforded to the. infant acquire the right to have their interest in the property resold. It is immaterial to the infant whether he remains tenant in common with those who were his co-owners or becomes tenant in common with the purchaser, and we see no difficulty in fully protecting the infant without wholly rejecting the sale. The bond given by Martin is conditioned that he shall appear at the re-sale ordered and bid for each parcel of the land as offered double the amount at which it was sold to Allen. The infant will be fully protected if the purchaser Allen shall accept a confirmation of the sale as to the interest of the adults in the land, consent to a re-sale of the whole property for partition between himself and the infant, and enter into a bond in the penalty of two thousand dollars, conditioned to appear at the sale to be made and bid for each tract as offered double the amount of his former bid. He will be allowed thirty days from this date in which to elect whether he will accept a partial confirmation on these terms. If he shall elect to have such confirmation, the decree of the Chancellor will be reversed and a proper decree entered here, otherwise the decree will be affirmed.

Bond given, and decree accordingly.