Carter v. Carter

3 Va. Cir. 12, 1980 Va. Cir. LEXIS 30

Opinion

By JUDGE WILEY R. WRIGHT, JR.

Although I do not think it necessary to refer this matter to a Commissioner in Chancery for a full-scale hearing, I do think it desirable to ask the Commissioner heretofore appointed to supplement his report to cover anything that may have occurred subsequent to the filing of his report which would affect the sale.

Insofar as [the] recommendation that the Court accept "offer C" is concerned, I have serious reservations as to whether the Court should accept it in its present form. I note that the offer contains a requirement concerning the insurability of the title and warranties which are intended to survive closing. In this regard, I call your attention to the discussion which appears at page 67 of the 1955 edition of Lamb’s work entitled A Virginia Cause and 47 Am. Jur. 2d, Judicial Sales, Section 140. It is my understanding that a special commissioner of sale is not empowered to give anything more than a special warranty deed and the purchaser takes the property in whatever status or condition it may be in at the time the Court confirms the sale. Before confirming the sale, the Court would give the prospective purchaser an opportunity to examine the title; however, neither the special commissioner of sale nor the committee can give additional warranties which would expose the estate to the possibility of subsequent liability.

If the maker of "Offer C" wishes to amend his offer so as to overcome the objections I have raised, he should be given an opportunity to do so.