Clifford v. Gardner

81 So. 544, 202 Ala. 602, 1919 Ala. LEXIS 321

• Court: Supreme Court of Alabama
• Decided: April 10, 1919
• Docket: 7 Div. 959.
• Status: Published

Opinion

SOMERVILLE, J.

As we read the brief of counsel for appellant, the only insistence made, by way of objection to the decree of sale, is that the decree is improvident in not requiring the Calhoun Hotel Company to file its written consent to the sale, and its written waiver of the right to claim a forfeiture, of the hotel lease, before the sale should be made, instead of before its confirmation merely ; the argument being that, unless this were done before the sale, the property would not bring a fair price. •

We do not think we would be justified in setting aside the order of sale in this case in anticipation of such a result.

While it is the duty of the trial court to sell the property under such terms and conditions as will yield the best results reasonably obtainable, it seems to, have made such provision to that end as it has power to make. It has adjudicated the nonforfeiture of the lease, and it has no power to require the lessor to file a consent to the sale, or a waiver of its rights under the lease. We are bound to assume that, if the sale, as ordered, does not bring a fair price for the property, the trial court will decline in any event to confirm it.

Appellant must therefore make his objection to the confirmation of an injurious sale, if and when made, rather than to an order of sale, the result of which is until then purely speculative.

We do not consider whether, as between these parties, and in view of their relations, a separate sale of the lease was proper, since that question is not before us.

* We see no reason for disturbing the decree appealed from, and it will be affirmed.

Affirmed.

ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.