Proceedings by information

665

Special Laws. 756 1903, Dec. 28, p. 32. Appointment of deputies by district attorney

LAWYERS' REPORTS

ANNOTATED.

KENTUCKY COURT OF APPEALS.

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 ter commissioner, W. I. Clarke, that he sold the payment of debts, and for the settlement to R. B. Cowper lots 67, 68, 69, 70, and 71, of his estate. At the April term, 1903, a and a part of outlot No. 17, as appears on judgment was entered directing a sale of the town plat of Smithland, Kentucky, and the real estate. The sale was made on June said Cowper having failed and refused to ex1st, and at it appellant, R. B. Cowper, bid ecute bonds therefor, and said fact being in lots 67, 68, 69, 70, and a part of lot 17, made known to this court as aforesaid, the for $265. After the sale he seems to have said commissioner is here directed to treat concluded that the title of the intestate to said sale to Cowper as if it had not been the land was not good, and refused to ex- made, and readvertise said property for sale, ecute a bond for the price. The commis- and sell same in the full way and manner sioner on September 9th filed his report of set out and directed in the judgment filed sale, stating that Cowper had purchased herein, and will in all respects comply with the property at the sale, and had refused to said judgment in taking bond, making reexecute a sale bond. On this report on Sep-port, and so forth and so on, as herein set tember 25th the court, without taking any out; and this cause is continued." The reproceedings against Cowper or confirming sale was made on November 2, 1893, and at the sale, entered the following order: "It it the property brought the sum of $32.

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 plead ed in the proceedings to hold the purchaser llable. 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

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