§ 4456.

§ 4470. $5096.

950 $5103.

$ 5131.

§ 5144.

6437. $$6786,

$ 6789.

§ 7212.

LAWYERS' REPORTS

ANNOTATED.

KENTUCKY COURT OF APPEALS.

R. B. COWPER, Appt.,

v.

D. B. WEAVER'S ADMINISTRATOR.

(........Kỵ.........)

A court order annulling a judicial sale, and directing a resale of the property, without accepting the bid, or directing any proceedings against the bidder, or any confirmation of the sale, relieves him from all liability upon his bid.

(January 10, 1905.)

A

PPEAL by defendant from a judgment of the Circuit Court for Livingston County holding him responsible for a bid made at a judicial sale. Reversed.

The facts are stated in the opinion. Messrs. Hendrick & Miller and J. C. Hodge for appellant.

Messrs. Bush & Wilson and C. C. Grassham for appellee.

Hobson, J., delivered the opinion of the court:

NOTE.-Relief of purchaser upon annulling ju- | in COWPER V. WEAVER'S ADMR. dicial or execution sale.

This

It is a necessary result that a purchaser is released from his bid on the sale being set aside. So the converse is also true, and a release from the bid will, in effect, set the sale aside. note is only intended to include such cases as show, in effect, that the sales were set aside or treated as invalid. In many cases a resale was had because the purchaser failed to comply with his bid, and proper steps were taken to hold him for a deficiency where the sale was not set aside. The reason for holding him liable is on the theory that his purchase is binding, and he has caused loss by his delinquency. The rule is that where proper steps are not taken to fix the purchaser's liability, and a resale is had, he will be released; and it may be stated that where he is led to believe that the first sale has been abandoned, and another sale is had, he will not be liable. This was the rule adopted

"The

D. B. Weaver died a resident of LivingAs to whether or not he may claim release if the sale is not confirmed, the case of CowPER V. WEAVER'S ADMR. holds that he is released, saying: purchaser at the first sale was only a preferred bidder until his bid was accepted by the court confirming the sale." But in a case in the United States Supreme Court (Camden v. Mayhew, 129 U. S. 73, 32 L. ed. 608, 9 Sup. Ct. Rep. 246), he was held not released; but the court offered to confirm the sale if he would pay, and an order was made to fix his liability when the Judicial sales subsequent sale was ordered. differ from execution sales, in that in the former a confirmation is necessary to fix the liability of the purchaser. Some states have a statutory provision for the confirmation of all sales. The purchaser will be released if the conditions in the second sale vary from those in the first sale. If the sale is void the purchaser will be released from his bid (see subdiv. III.). He will be released by the court in judicial sales which are set aside on the ground that the title is doubtful (see subdiv. II.). He has been released on the ground of poverty.

So, where no notice was given or rule taken against the purchaser at a sheriff's sale, that a resale would be at his risk, he was held justified in regarding his purchase as abandoned. Galpin v. Lamb, 29 Ohio St. 529.

The same was held in Girard L. Ins. Co. v. Young, 8 Phila. 16, the court saying: "Surely if, after such a sale, the property is again put up without any demand on the part of the sheriff or anyone else for the performance of the contract, and without any notice or intimation that the purchaser is to be held responsible for the loss, on a resale, he may fairly infer that his bid is not insisted on, that his compliance with it has been waived."

In Makeinson v. Braun, 100 Ky. 88, 37 S. W. 495, the purchaser refused to execute bonds, and the commissioner, without reporting to the 3

33

ter commissioner, W. I. Clarke, that he sold to R. B. Cowper lots 67, 68, 69, 70, and 71, and a part of outlot No. 17, as appears on the town plat of Smithland, Kentucky, and said Cowper having failed and refused to execute bonds therefor, and said fact being made known to this court as aforesaid, the said commissioner is here directed to treat said sale to Cowper as if it had not been

ston county, and his administrator brought appearing to the court by report of the mas this suit to sell the land owned by him for the payment of debts, and for the settlement of his estate. At the April term, 1903, a judgment was entered directing a sale of the real estate. The sale was made on June 1st, and at it appellant, R. B. Cowper, bid in lots 67, 68, 69, 70, and a part of lot 17, for $265. After the sale he seems to have concluded that the title of the intestate to the land was not good, and refused to ex-made, and readvertise said property for sale, ecute a bond for the price. The commissioner on September 9th filed his report of sale, stating that Cowper had purchased the property at the sale, and had refused to execute a sale bond. On this report on September 25th the court, without taking any proceedings against Cowper or confirming the sale, entered the following order: "It court, readvertised and sold the property, which sale was confirmed. Subsequently a rule was issued against the first purchaser to show cause why he should not be required to pay a deficiency arising between the sales. It was held that, as the commissioner had elected to treat the first purchase as a nullity, and reported all his acts to the court, and no steps were taken to compel the purchaser to comply with his purchase, but, instead, the last sale was confirmed, the rule was taken too late, and the purchaser was released.

And in Stout v. Philippi Mfg. & M. Co. 41 W. Va. 339, 56 Am. St. Rep. 843, 23 S. E. 571, where, by consent of the parties, it was agreed that there should be a resale, and the same purchaser purchased at the second sale at a less price, and the first sale was not confirmed, or reported until after the second sale, it was held that he was not liable for the deficiency. In this case the property was injured by a freshet between the sales, although this was not pleaded in the proceedings to hold the purchaser liable. The court said: "But, without report of this bid, or its acceptance by the court, or intimation of a purpose to hold him to his bid. the property is resold, by mere act of the attorneys of the parties, without advertisement. As all parties consented to a resale, Douglass could fairly infer that they recognized the injustice of confirming the sale, and agreed to disregard it."

In Mississippi it was held that no liability attaches to the first purchase until after the sale is confirmed; that, if the purchaser refuses to pay, and the commissioners advertise and resell at a lower price, without reporting to the court until after a second sale, which is confirmed, the purchaser will not be held liable for the deficiency. Campe v. Saucier, 68 Miss. 278, 24 Am. St. Rep. 273, 8 So. 846.

In regard to the necessity of a confirmation to hold the purchaser, in Virginia F. & M. Ins. Co. v. Cottrell, 85 Va. 857, 17 Am. St. Rep. 108, 9 S. E. 132, the court said: "Until the sale has been confirmed the proceeding is in fieri; the bidder is not considered as a purchaser, and he is therefore not liable for loss to the property, by fine or otherwise, in the interim; nor is he compellable, before confirmation, to complete his purchase."

So, in Neal v. Andrews, 53 Ark. 445, 14 S. W. 646, the court said: "In a judicial sale the

and sell same in the full way and manner set out and directed in the judgment filed herein, and will in all respects comply with said judgment in taking bond, making report, and so forth and so on, as herein set out; and this cause is continued." The resale was made on November 2, 1893, and at it the property brought the sum of $32. court is the vendor, and there is no completed sale until confirmation by the court, which is the acceptance of the bidder's offer."

And a motion that a person reported best purchaser should complete his purchase by a certain day was refused; the report not being absolutely confirmed. Anonymous, 2 Ves. Jr. 335. The lord chancellor said: "He felt a difficulty; as until confirmation, the purchaser is always liable to have the biddings opened; until that, non constat that he is the purchaser."

And in Campbell v. Johnston, 4 Dana, 178, the court said: "Although in general the purchaser under an erroneous decree in chancery may not be affected by the reversal of the decree, yet, as was determined by this court in the case of Forman v. Hunt, at the last spring term. 3 Dana, 614, such sales are not complete until they are sanctioned by the court."

So, in Harwood v. Cox, 26 Ill. App. 374, the court said: "The accepted bidder at a master's sale acquires no independent right to have his purchase completed, but is nothing more than a preferred bidder, who proposes for the purchase of the property, depending upon the sound, equitable discretion of the chancellor for a confirmation of the sale by his ministerial agent."

And in Gowan v. Jones, 10 Smedes & M. 164. the court said: "In chancery, some reports are conclusive, and others require confirmation. Among the latter, is the report allowing the highest bidder at a sale under a decree to be the purchaser."

So, in Mebane v. Mebane, 80 N. C. 34, the court said: "The bid is but a proposition to buy, and, until accepted and sanctioned by the court, confers no right whatever upon the purchaser. The sale is consummated when that sanction is given and an order for title made and executed."

In Forman v. Hunt, 3 Dana, 614, the commissioner in a foreclosure sale, supposing that the estate would be subject to redemption, had the estate valued, which depressed the sale, and the property did not bring its fair value. The court set the sale aside on condition that the purchaser be paid costs and expenses. The court said: "Those who purchase at a chancellor's sale purchase subject to this revising power and control, exercised by the chancellor over the sale; and their right to the purchase