Sikes v. Sikes , 153 Ga. 725 ( 1922 )

Hill, J.

(After stating the foregoing facts.)

1. In the view we take of this case the judgment should be reversed, because the verdict finding for the defendants was contrary to law. That is to say, we are of the opinion that the sale held in the afternoon of the same day on which a part of the property had been knocked off to the plaintiff was void. The Civil Code, § 4022, provides: “All sales by administrators (except of annual crops sent off to market, and of vacant lands) shall be at public outcry between the hours of 10 o’clock a. m. and 4 o’clock p. in; nor shall any sale be continued from day to day, unless so advertised. Good faith is required of the administrator in all cases, that the property be sold in such manner and quantities as shall be deemed most advantageous to the estate.” The evidence is conflicting as to whether the sale in the afternoon took place prior to or subsequently to the hour of 4 o’clock. The plaintiff testified that the sale in the afternoon did not commence until after 4 o’clock. The administrator, and other of his witnesses, on the other hand, testified that it was before 4 o’clock. The jury were therefore authorized to find that the sale in the afternoon took place within the legal hours of sale. But we place our decisión of a reversal of the judgment of the court below upon the fact that no notice of any kind was given to the public before the crowd assembled in the morning, or afterwards and before they dispersed, that there would be another sale during the day. The second sale was not announced until just immediately before or at 4 o’clock; and we are of the opinion that after the crowd had dispersed and no notice had been given of another sale, and when, according to the evidence, very few, if any, persons, outside those who were directly interested in the estate, were present, the sale was void. Suttles v. Sewell, 109 Ga. 707 (35 S. E. 224).

Inadequacy of price alone is not sufficient to void a sale without fraud; and unless the inadequacy is so gross as, combined with other circumstances, to amount to a fraud, a 'sale can not be held to be void. Civil Code (1910), § 4129; Black v. Elrod, 146 Ga. 692 (92 S. E. 62). But, taking into consideration all the “other circumstances ” of this case,— the facts that the crowd had practically all dispersed, that the sale was conducted by the attorney of the administrator, that the purchaser at the same was the brother of the administrator, who was bidding in competition with the plaintiff, that the land in the afternoon, when the crowd had dispersed, brought only about half of what was bid for it in the morning by the same purchaser, and that the land was put up for sale the last time about, if not after, 4 o’clock,— taking all these circumstances together, and the other fact, as appears from the record, that the defendants expressed a purpose to resell this land at the risk of the plaintiff, we are of the opinion that a new trial should be granted in this case.

In the case of Smith v. Ga. Loan & Trust Co., 114 Ga. 189, 192 (39 S. E. 846), it is said: “We think the authorities are uniform that where there is gross inadequacy of price, any circumstances such as fraud, mistake, misapprehension, surprise, or anything else which conduces to the inadequacy of price, will be held to invalidate the sale.” It is also said that “ Courts have full power over their officers making execution sales; and whenever satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the sale will be set aside.”

In Bean v. Kirkpatrick, 105 Ga. 476 (30 S. E. 426), it was held: “ It is the right and duty of an administrator who is conducting a public sale of property belonging to the estate of his intestate, to withdraw the same from sale when it is manifest that the property is about to be sacrificed at a grossly inadequate price.” It appears from the record that the same purchaser who bought at 4 o’clock p. m. bid twice as much for the same property in the morning as he bid in the afternoon; and that being so, we think it is manifest that the administrator knew or must have known that the property was being sacrificed at the last sale at a grossly inadequate price, and under these circumstances it was his duty to have withdrawn that property from sale and to have readvertised it, provided the persons making the highest bid in the morning did not comply with that bid. It is true that if a purchaser fails or refuses to comply with his bid, an officer or administrator may, under proper conditions, resell on the same day within the legal hours of sale (Suttles v. Sewell, supra); and what is meant by “under proper conditions” has been construed to mean “before the crowd disperses and the hours of sale terminate.” Ibid. 709. From a reading of the entire record in this case it can not be said that this second sale was held under proper conditions. In order for the conditions to be proper, the second sale should not only take place within the legal hours, but the sale should not occur under circumstances such as were testified to in the present case, when the crowd had dispersed and when prospective bidders were kept from bidding on the property if they desired to do so. We are of the opinion that this case would stand differently if the purchaser at the morning sale had repudiated her bid before the crowd dispersed, and the second sale had been called after timely notice within the legal hours. Roberts v. Smith, 137 Ga. 30 (2) (72 S. E. 410). But of course, if the sale is held on-the same day, it should be before the crowd disperses and within the legal hours. In Black v. Elrod, supra, it was held that “ Where an administrator sells property of the estate at an inadequate price, and where the facts show other and corroborating evidence of fraud, the sale should be set aside.” The evidence for the plaintiff, including a number of witnesses, is to the effect that the property was sold in the afternoon at an inadequate price; and while fraud is subtle 'in its nature and difficult to prove, yet slight circumstances are sufficient to prove its existence; and we think that the facts of the present case, including inadequacy of price, are sufficient to authorize the setting aside of the second sale.

From what has been said above we conclude that a new trial should be granted because the verdict finding in favor of the defendants as to the last sale was contrary to law.

2. The court charged the jury as follows: “The plaintiff in this case contends that the consideration received from the sale of these lands, that is, the sum or amount paid by Joseph E. Sikes for these lands, was grossly inadequate, that it did not represent the value of the lands at that time, and that the amount was grossly insufficient to really pay for the land at its actual cash value at the time the lands were sold.” The court then followed the portion of the charge above quoted with the following instruction to the jury: “Concerning this subject (the subject of gross inadequacy of price) ‘ I charge you: great inadequacy of consideration, joined with great disparity of mental ability in contracting a bargain, may justify a court of equity in setting aside a sale or other contract. Mere inadequacy of consideration alone will not void a contract. If the inadequacy be great, it is a strong circumstance to evidence fraud.” The last portion of the charge quoted above is excepted to on the ground that it was inapplicable to the evidence in the case, there being no evidence to authorize the charge, and that it was applied by the jury to the injury of the movant. The portion of the charge excepted to is taken literally from § 4630 of the Civil Code of 1910. The general rule is that instructions to a jury must be based upon evidence; and an instruction that is not warranted by the evidence, and which is calculated to confuse and mislead the jury, is error. Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (2) (76 S. E. 387, Ann. Cas. 1914A, 880). In the case of Gorman v. Campbell, 14 Ga. 137, 142, it was held: “A charge is objectionable which states general principles correctly but which are nevertheless not applicable to the facts as proven. The instructions should always be given in reference to the evidence in the particular case.” In delivering the opinion of the court in the Gorman case Judge Lumpkin said: “Nothing is more dangerous than to lay down general propositions, which, instead of aiding, scarcely ever fail to mislead juries. Courts should apply the principles of law to the facts in evidence in each particular case; stating those facts hypothetically.” And see, to the same effect, Butt v. Maddox, 7 Ga. 495 (3) ; Towns v. Kellett, 11 Ga. 286 (2), 293. As the judgment is reversed upon another ground, we call attention to the inaptness of the portion of the charge excepted to, in order that it may not be repeated on the next trial, unless there is evidence to authorize it.

3. The other grounds of the motion for new trial do not show cause for reversal.

Judgment reversed.

All the Justices concur.