Garfield, J.
-A rehearing having been granted on the principal question involved, the approval of the sale of the premises to Ralph F. Criswell, the opinion handed down on March 11, 1941, and reported in 296 N. W. 735, and Vol. 230, Iowa Advance Sheet, page 27, is hereby withdrawn, except Divisions II, III, and IV thereof. The petition for rehearing and the arguments on resubmission in no manner challenge said Divisions II, IIT, and TY, dealing with questions other than the approval of the sale of the realty and so much of the opinion of March 11, 1941, remains unchanged.
The land, involved in this suit consists of two tracts, each with a set of improvements. One tract contains 65 acres and was occupied by Carl II. Criswell and wife, Elizabeth, as their home. Carl owned an undivided fourth interest in this tract. The remaining interest was owned- by Ralph F. Criswell and wife, Vivian. The other tract contains 105 acres and was occupied as a home by Ralph and wife. Carl owned an undivided half interest in the 105 acres and the remaining interest Avas OAvned by Ralph and wife. In January 1937, Ralph and AATife brought suit in partition for the sale of the entire 170 acres “at either public auction or private sale.” Decree AAras entered in July 1938, appointing a referee to sell the land as an entirety at public sale. Such sale AAras had on January 16, 1939, and the property AA’as bid in at $4,600 by one Wissler for Carl II. Criswell. Three days later, Avhen the sale came before the court for approval, one Dodds, a brother of Vivian, Ralph’s AA'ife, made a written offer to the referee of $5,600 for the property. Carl II. Criswell then made a Avritten offer to pay $5,625. The trial court approved the sale to Dodds at $5,600. From such order of approval, Carl appealed to this court. The order was reversed and the cause remanded to the district court “with full power to such court to order a resale of the property, either public or private.” See 227 Iowa 212, 288 N. W. 130.
Following the remand, a second public sale was had by the referee on March 15, 1940, at which the high bidder was Carl H. Criswell with a bid of $5,800. Ralph was present at the sale and submitted the next high -bid of $5,790, On March 19th the referee filed a report of sale to Carl for the $5,800. On the same day Ralph filed objections to the report, accompanied by his written offer of $5,825 for the premises. Carl filed resistance to the consideration by the court of this offer of Ralph’s, principally on the grounds that Ralph had had ample opportunity to bid and that a sale to him would be inequitable and unjust. Carl’s resistance was on motion stricken by the court who by order dated March 20th provided that the referee’s report of sale and Ralph’s bid of $5,825 would be considered by the court on March 21st at 2:30 p. m. and that all parties should have the right to make any further bid at that time, upon the same terms
previously ordered by the court and announced by the referee at the public sale on March loth.
Pursuant to this order, Carl H. and Elizabeth Criswell, with their attorney, and Ralph F. Criswell with his attorneys, appeared in court at the time fixed. Carl’s attorney orally stated: “We reserve all rights and exceptions in making any further bids,” and thereuppn bid $5,850. Ralph’s attorney then announced a bid of $7,500. Carl’s attorney advised the court that he would make no further bids. The court approved the sale for v$7,500 to Ralph, who subsequently made settlement with the referee. From such approval, Carl and wife have appealed to this court.
I. Appellants contend that the sale to Ralph was in violation of the terms of the decree, which provided for a public sale. What is referred to as the sale in the courtroom is said to have been a private sale. A like contention was made by these same appellants and rejected by us upon their previous appeal. They then argued that because Wissler was the high bidder at the first auction, acceptance by the court of the subsequent increased offer of Dodds violated the provisions of the decree. We held the court was right in rejecting the high bid of Wissler and in considering the larger subsequent offer of Dodds. 227 Iowa 212, 219, 220, 288 N. W. 130, 134. Although appellants in argument concede that the opinions of this court make no distinction between public and private referees’ sales in passing on the right of the court to consider higher offers, substantially the same argument is now máde that was made upon the former appeal. We again hold the contention is without merit.
The statutes provide that a sale by a referee, either public or private, is subject to court approval. Sections 12344, 12345, Code, 1939. It is settled by our decisions that either a public or private sale by a referee or similar court officer is incomplete until ratified by the court; that until such time the highest bid is in reality but an offer and the person mailing it has no standing to demand its approval. Reece v. Cartwright, 209 Iowa 706, 708, 228 N. W. 641, 642; Harney v. Crowley, 184 Iowa 1101, 169 N. W. 370; Loyd v. Loyd, 61 Iowa 243, 16 N. W. 117. In Harney v. Crowley, at page 1103 of 184 Iowa, page 370 of 169 N. W., we say: “It [the district court] has, however, at all times, the un
doubted power to refuse its approval of the high bid at the sale. ’ ’
Appellants also contend that in any event the trial court abused its discretion in approving the sale to Ralph. We hold that no abuse of discretion appears. Ralph’s bid of $7,500 was an increase of $1,700 over the high bid of Carl at the auction. It was $2,884.21 in excess of the amount for which the land had been appraised. It is not contended that the price is inadequate. On the contrary, appellants seem to concede that $7,500 is considerably more than the land is worth. One of the primary concerns of the court in passing on judicial sales should ordinarily be to obtain the highest price that can fairly be procured. It must be remembered that Carl, as part owner, will benefit by the increased price.
Appellants argue that Ralph made such a large offer in order to- keep his brother from owning the land. We do not know what Ralph’s secret intentions may have been. It may be assumed, however, that ordinarily a high bidder wants to prevent the sale of the property to any competing bidder. Ralph and his wife had a somewhat larger interest than Carl. A portion of the land was their home just as another tract was the home of Carl. In the last analysis, Carl is complaining because he did not get the property. The reason he did not get it, we have a right to conclude, is that he was unwilling to pay as much as was Ralph.
In our previous opinion in this ease, we say (227 Iowa 212, 221, 288 N. W. 130, 135) : “After the bid at the public sale had been rejected, and the bidding was opened anew, the court should have continued to receive all bids offered and have accepted the last and highest bid.” The trial court apparently attempted to comply with' the above suggestion. We have held that ordinarily the discretion to reject an increased bid becomes narrower as that bid becomes larger. Harney v. Crowley, 184 Iowa 1101, 1103, 169 N. W. 370. See, too, Dyer v. Dyer, 220 Iowa 405, 262 N. W. 671. It follows that the discretion of the court to reject the high bid reported by the referee ordinarily widens as the additional bids become larger.
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Garfield, J.
-A rehearing having been granted on the principal question involved, the approval of the sale of the premises to Ralph F. Criswell, the opinion handed down on March 11, 1941, and reported in 296 N. W. 735, and Vol. 230, Iowa Advance Sheet, page 27, is hereby withdrawn, except Divisions II, III, and IV thereof. The petition for rehearing and the arguments on resubmission in no manner challenge said Divisions II, IIT, and TY, dealing with questions other than the approval of the sale of the realty and so much of the opinion of March 11, 1941, remains unchanged.
The land, involved in this suit consists of two tracts, each with a set of improvements. One tract contains 65 acres and was occupied by Carl II. Criswell and wife, Elizabeth, as their home. Carl owned an undivided fourth interest in this tract. The remaining interest was owned- by Ralph F. Criswell and wife, Vivian. The other tract contains 105 acres and was occupied as a home by Ralph and wife. Carl owned an undivided half interest in the 105 acres and the remaining interest Avas OAvned by Ralph and wife. In January 1937, Ralph and AATife brought suit in partition for the sale of the entire 170 acres “at either public auction or private sale.” Decree AAras entered in July 1938, appointing a referee to sell the land as an entirety at public sale. Such sale AAras had on January 16, 1939, and the property AA’as bid in at $4,600 by one Wissler for Carl II. Criswell. Three days later, Avhen the sale came before the court for approval, one Dodds, a brother of Vivian, Ralph’s AA'ife, made a written offer to the referee of $5,600 for the property. Carl II. Criswell then made a Avritten offer to pay $5,625. The trial court approved the sale to Dodds at $5,600. From such order of approval, Carl appealed to this court. The order was reversed and the cause remanded to the district court “with full power to such court to order a resale of the property, either public or private.” See 227 Iowa 212, 288 N. W. 130.
Following the remand, a second public sale was had by the referee on March 15, 1940, at which the high bidder was Carl H. Criswell with a bid of $5,800. Ralph was present at the sale and submitted the next high -bid of $5,790, On March 19th the referee filed a report of sale to Carl for the $5,800. On the same day Ralph filed objections to the report, accompanied by his written offer of $5,825 for the premises. Carl filed resistance to the consideration by the court of this offer of Ralph’s, principally on the grounds that Ralph had had ample opportunity to bid and that a sale to him would be inequitable and unjust. Carl’s resistance was on motion stricken by the court who by order dated March 20th provided that the referee’s report of sale and Ralph’s bid of $5,825 would be considered by the court on March 21st at 2:30 p. m. and that all parties should have the right to make any further bid at that time, upon the same terms
previously ordered by the court and announced by the referee at the public sale on March loth.
Pursuant to this order, Carl H. and Elizabeth Criswell, with their attorney, and Ralph F. Criswell with his attorneys, appeared in court at the time fixed. Carl’s attorney orally stated: “We reserve all rights and exceptions in making any further bids,” and thereuppn bid $5,850. Ralph’s attorney then announced a bid of $7,500. Carl’s attorney advised the court that he would make no further bids. The court approved the sale for v$7,500 to Ralph, who subsequently made settlement with the referee. From such approval, Carl and wife have appealed to this court.
I. Appellants contend that the sale to Ralph was in violation of the terms of the decree, which provided for a public sale. What is referred to as the sale in the courtroom is said to have been a private sale. A like contention was made by these same appellants and rejected by us upon their previous appeal. They then argued that because Wissler was the high bidder at the first auction, acceptance by the court of the subsequent increased offer of Dodds violated the provisions of the decree. We held the court was right in rejecting the high bid of Wissler and in considering the larger subsequent offer of Dodds. 227 Iowa 212, 219, 220, 288 N. W. 130, 134. Although appellants in argument concede that the opinions of this court make no distinction between public and private referees’ sales in passing on the right of the court to consider higher offers, substantially the same argument is now máde that was made upon the former appeal. We again hold the contention is without merit.
The statutes provide that a sale by a referee, either public or private, is subject to court approval. Sections 12344, 12345, Code, 1939. It is settled by our decisions that either a public or private sale by a referee or similar court officer is incomplete until ratified by the court; that until such time the highest bid is in reality but an offer and the person mailing it has no standing to demand its approval. Reece v. Cartwright, 209 Iowa 706, 708, 228 N. W. 641, 642; Harney v. Crowley, 184 Iowa 1101, 169 N. W. 370; Loyd v. Loyd, 61 Iowa 243, 16 N. W. 117. In Harney v. Crowley, at page 1103 of 184 Iowa, page 370 of 169 N. W., we say: “It [the district court] has, however, at all times, the un
doubted power to refuse its approval of the high bid at the sale. ’ ’
Appellants also contend that in any event the trial court abused its discretion in approving the sale to Ralph. We hold that no abuse of discretion appears. Ralph’s bid of $7,500 was an increase of $1,700 over the high bid of Carl at the auction. It was $2,884.21 in excess of the amount for which the land had been appraised. It is not contended that the price is inadequate. On the contrary, appellants seem to concede that $7,500 is considerably more than the land is worth. One of the primary concerns of the court in passing on judicial sales should ordinarily be to obtain the highest price that can fairly be procured. It must be remembered that Carl, as part owner, will benefit by the increased price.
Appellants argue that Ralph made such a large offer in order to- keep his brother from owning the land. We do not know what Ralph’s secret intentions may have been. It may be assumed, however, that ordinarily a high bidder wants to prevent the sale of the property to any competing bidder. Ralph and his wife had a somewhat larger interest than Carl. A portion of the land was their home just as another tract was the home of Carl. In the last analysis, Carl is complaining because he did not get the property. The reason he did not get it, we have a right to conclude, is that he was unwilling to pay as much as was Ralph.
In our previous opinion in this ease, we say (227 Iowa 212, 221, 288 N. W. 130, 135) : “After the bid at the public sale had been rejected, and the bidding was opened anew, the court should have continued to receive all bids offered and have accepted the last and highest bid.” The trial court apparently attempted to comply with' the above suggestion. We have held that ordinarily the discretion to reject an increased bid becomes narrower as that bid becomes larger. Harney v. Crowley, 184 Iowa 1101, 1103, 169 N. W. 370. See, too, Dyer v. Dyer, 220 Iowa 405, 262 N. W. 671. It follows that the discretion of the court to reject the high bid reported by the referee ordinarily widens as the additional bids become larger.
The order approving the sale to Ralph F. Criswell is affirmed. The other orders and judgments from which appeal has been taken are, disposed of by Divisions II, III, and IV of the opinion written by Mr. Justice Stiger, and filed on March 11,-1941, as follows:
II. As stated, appellant appealed from the first referee’s public sale held in February 1939. Criswell v. Criswell, 227 Iowa 212, 288 N. W. 130. His motion for a stay being refused by this court, he was compelled to leave the premises on March 1, 1939.
On December 13, 1939, appellee, Ralph Criswell, filed an amendment to his petition in partition charging Carl Criswell, appellant herein, with wrongfully removing eighteen items of property from the real estate when he left the farm, alleging the real estate was damaged by removal of the various items. A trial was had on April 27, 1940.' The court awarded Ralph Criswell, appellee, damages against Carl Criswell for removal of ten items in total amount of $414.55; for illustration, the court rendered judgment for $25 for damages to the real estate caused by the removal of screens and screen doors. Carl Criswell has appealed from the several judgments. The judgments appealed from must be reversed.
Appellee does not claim damages for deprivation of the use of the real estate or the- items. His action is for damages to the real estate. He testified he took possession of the property on March 1,1939. However, the trial court found in an order dated February 9, 1940, that Ruel Dodds went into possession of the premises March 1, 1939, under his referee’s deed. The nature of appellee’s rights in the real estate on March 1, 1939, is not disclosed and there is no showing that any rights he may have had in the real estate were infringed.
Furthermore, the several judgments cannot be upheld because it. appears that some of the property appellant is accused of taking is on the farm and the remainder is owned by him personally. Another reason why the judgments cannot be sustained is that the proper measure of damages was neither alleged nor proved. Appellee, in attempting to prove damages to
the real estate, sought to introduce evidence of the value of new items to replace the old items.
In Grell v. Lumsden, 206 Iowa 166, 169, 220 N. W. 123, 125, the court states:
“If the thing destroyed or removed from real property, although a part thereof, has a value which can be accurately measured or ascertained without reference to' the soil on which it stands, the recovery is the value of the thing thus destroyed or removed, and not the difference in the value of the land. Koonz v. Hempy, 142 Iowa 337; Rowe v. Chicago & N. W. R. Co., 102 Iowa 286; McMahon v. City of Dubuque, 107 Iowa 62; Anderson v. Wilson, 142 Iowa 158; Greenfield v. Chicago
&
N. W. R. Co., 83 Iowa 270.” The articles alleged to have been removed are within this rule. The case is reversed on this appeal.
III. Appellant filed a counterclaim against appellee for cutting 1,000 hedge posts during the period they owned the land in common. The court awarded appellant one half the value of the posts sold by appellee and one half of the posts remaining on the farm. Appellant appealed from this order. Under the circumstances shown by the record, the order was proper and is affirmed.
IV. Appellant also appealed from the allocation of costs made in the lower court in the many contested issues in the litigation. Sections 12339 and 11622, 1939 Code, read:
“12339 Costs generally. All the costs of the proceedings in partition shall be paid, in the first instance, by the plaintiffs, but eventually by all the parties in proportion to their interests, except costs which are created by contests.”
“11622 Recoverable by successful party. Costs shall be recovered by the successful against the losing party. ’ ’
Section 11625 reads:
“11625 Apportionment among numerous parties. In actions where there are several plaintiffs or several defendants, the costs shall be apportioned according to the several judgments rendered; and where there are several causes of action embraced
in the same petition, or several issues, the plaintiff shall recover costs upon the issues determined in his favor, and the defendant upon those determined in his favor.”
It appears that appellant has been prejudiced by the failure below to tax costs in several of the contests in harmony with these sections. The costs below should be retaxed in compliance therewith. Three fourths of the costs on appeal are taxed to appellee and one fourth to appellant. — Reversed in part; affirmed in part; and remanded.
Miller, C. J., and Mitchell, Bliss, Oliver, and Hale, JJ., concur.
Stiger, J., dissents as follows: