Opinion
09-12-1888
MILLER et al. v. KENDRICK et al.
Stephany, for the motion. R. S. Jenkins, contra.
Bill to foreclose. On motion to set aside sheriff's sale.
Stephany, for the motion. R. S. Jenkins, contra.
BIRD, V. C. It is claimed that if one parcel of the premises which were struck off by the master had been divided and offered in two parcels, instead of one, he would have realized at least $3,000 more on the sale. It was sold for $9,000. A good deal is to be overcome before the court can refuse to confirm the sale The party objecting to confirmation is the mortgagor. His negligence and apparent trifling with the court, as well as with his own interests, stand in his way, as will be seen. Before the decree of sale was obtained, a reference was made to a master to ascertain the rights and interests of the parties, and to determine whether the land should be sold in parcels or not, and, if in parcels, then to ascertain and determine what parcels. He made his report, by which it appeared that the premises should be sold in parcels. That report was confirmed by the court, and a decree made thereon.The execution which was issued by virtue thereof was directed to an experienced master, and required him to sell the premises in such parcels as had been before ascertained. He advertised the property according to law, and no objections are made to the manner of dividing the premises until about the time fixed for sale, and the attention of the court is not called to the subject until after the report of sale. All parties had an equal opportunity of being heard on this point before the master. They were content to let that report stand. No objections were made to it until there was an experiment in offering the premises for sale. The affidavits of witnesses have been produced, by which it appears that they think that if the parcel in question should be divided into two parcels, one containing 50 feet in width, and the other 25, and so sold, they would probably bring $3,000 more than at the first sale. It must be admitted that if this property would bring, at sheriff's sale, that additional sum, the court would hesitate a long while before confirming the sale. But to say nothing as to the fact that the witnesses who speak upon the value were all within reach of the mortgagor at the time the master made his report, and that the mortgagor neglected to produce them before the master, it is of great consequence that now their testimony, although ex parte, is quite indefinite, uncertain, and inconclusive. As intimated, they simply say that if the property were to be divided as suggested it would probably bring 3,000 more. It is very probable, however, that they speak with caution. It should be remarked that a person well acquainted with the premises swears that at the sale it brought all that it was reasonably worth. But to refuse to confirm this sale would be offering a bid for the most extreme carelessness on the part of defendants in such cases. Indeed, it would open the door for the greatest trifling with the court, which cannot be overlooked unless a very clear case of serious wrong is made out by the party asking for the favor. This consideration has no little influence. In all this I have not forgotten the fact that the complainant, and not a stranger, was the purchaser. This I regard as worthy of consideration. He still has the same security for his money that he had before, except that the buildings on the land are liable to depreciation and destruction. But while the complainant is thus secured, his rights are not to be placed beneath those of the mortgagor. The complainant has simply pursued his legal rights diligently, while the mortgagor (if he had any rights which have not been secured to him) has stood by most negligently, offering no aid to the court when the court was using every known agency to secure the rights and interests of every party. But now the mortgagor comes in and declares that the master was wrong in his conclusions, and that the court made a mistake in confirming his report, and asks that there be an experiment of another sale. And this he does without offering to give to the complainant or to the court any security that the complainant shall be none the worse off by such experiment. Nor does he produce any one who pledges himself to the court that he will give one dollar more for the premises, when so divided, than has already been offered. The complainant is not even protected against any accruing interest and the cost of a resale. But notwithstanding the fact that the defendant, the mortgagor in this case, may justly be charged with so much negligence and trifling, the court will not undertake to punish him therefor by taking from him a considerable amount of money, even though the proof, upon which it is alleged that such result would follow if the sale should be confirmed, be slight and uncertain. If the property in question will bring $3,000 more at a forced sale, or even $1,000 more, or even less, it would be manifest injustice for the court to take that from the debtor and give it to the creditor. When the conditions which shall be imposed are all taken into the account, no equitable rule will be violated in refusing to confirm the sale. These conditions will secure to the purchaser and mortgagee all that he now has or is entitled to. He now has the highest bid and the agreement of the sheriff to convey the property to him in case the sale be confirmed,and still a large balance due to him on his final decree. If he is protected in this, and can raise by a resale enough to satisfy the whole amount of his decree, that would give much higher satisfaction to the court, and would be doing the complainant, who is the present purchaser, no injustice. It is the duty of the court to see to it that premises are sold for the best price that can be obtained. Therefore, if the petitioner will pay all the costs of the previous sale, and all the costs of this application, and of such modification of the decree as shall be necessary, and will deposit with the clerk of this court the amount of the interest for three months upon the whole amount of the decree in favor of the complainant, to be paid to the complainant in case upon a resale enough is not realized in advance of the present bid to pay the costs and said interest, and will procure, at his own expense, the buildings on the said premises to be insured against loss by fire in some reliable insurance company, for the highest sum which can reasonably be obtained for the space of three months, and will assign the policy to the complainant, and perform all the foregoing conditions within five days from this date, (August 27, 1888,) then, and in such case, the court will refuse to confirm said sale, and will made a modification of the decree directing the premises in question to be sold in two parcels, or in one, accordingly as the highest price may be offered therefor.