Auerbach v. Wolf

22 App. D.C. 538, 1903 U.S. App. LEXIS 5556

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 4, 1903
• Docket: No. 1345
• Status: Published

Opinion

Mr. Chief Justice Alvet

delivered the opinion of the Court:

It is very true that judicial sales are entitled to every fair intendment, atid to all the safeguards that can be reasonably indulged for their support to encourage the public to become bidders, and to have faith in the offers made to them by the courts and their officers. But, in this case, there are no facts that would justify this court on review, in reversing the order of the court below from which this appeal has been taken. Whether the reported offer by the appellant should be accepted or not, rested largely in the discretion of the court below directing the sale of the property, and who was, in legal contemplation, the vendor of the property. The discretion of the court below over the subject of the sale, should not be controlled by an appellate power, unless it be made apparent that the discretion .has been abused to the actual prejudice of the party complaining-. The general rule is, doubtless, that the sale will not be set aside or its ratification refused for mere inadequacy of price, unless the court believe that such inadequacy was the result of ■fraud, surprise, mistake, or unfairness in the sale. Cunningham v. Schley, 6 Gill. 208; Cohen v. Wagner, 6 Gill. 251. In this case, there is no suggestion of fraud, mistake, or unfairness in making the sale. But the settled principle is that in chancery sales, the contract of sale, made between the court as the vendor of the property, through the agency of a trustee, and the purchaser, is never regarded as consummated until it has received the sanction and ratification of the court. Wagner v. Cohen, 6 Gill. 97, 46 Am. Dec. 660. And in determining the question whether the sale shall be ratified or rejected as reported, any circumstances showing that the sale as proposed would be injurious to the parties concerned, or that a better sale might reasonably and probably have been made, will be regarded as sufficient to induce the court to refuse ratification. The trustees in their second report would seem to have acted upon the assumption that it would be unfair and unjust to the parties concerned that the bid of the appellant should be accepted and ratified, when so much larger price could be obtained from other parties for the property; and this presented a question for the exercise of discretion by the court below'; and we think the exercise of that discretion, resulting in the rejection of the salé to the appellant, should not be controlled or disturbed by this court. We must not be understood, however, in so holding, that we intend to give any sanction to the old English practice of opening biddings in chancery sales, upon the mere offering of an advance upon the purchaser’s bid. That practice has never obtained in this District, nor in the courts of Maryland. Cohen v. Wagner, 6 Gill. 251.

The order appealed from will be affirmed; and it is so ordered. •

Order affirmed.

Mr. Lambert and Mr. Baker, on behalf of the appellant, filed a motion for a rehearing, and a brief in support of it in which they cited the following ' additional authorities: Farmers’ Bank v. Clark, adm., 28 Md. 155; Garritee et al. v. Poplein, 73 Md. 325; Bank v. Lanahan, Trustee, et al., 45 Md. 410; Carroll v. Hutton, 91 Md. 380; Berry v. Skinner, 30 Md. 574; Rorer on Judicial Sales, sec. ed., § 110; Hubbard v. Jarrell, 23 Md. 66; Barling v. Peters, 134 Ill. 606; Bolgiano v. Cook, 19 Md. 391; Chilton v. Brooks et al. 69 Md. 587 ; Thompson v. Ritchiem, 80 Md. 252.

The motion for a rehearing was overruled January 5, 1904. .