Tyson v. Mickle , 2 Gill 376 ( 1844 )

Dorsey, J.,

delivered the opinion of this court.

The trustees report shews, that “on the 21st of June 1841, the property was offered at sale, pursuant to the decree; but being unable to obtain any bid for it, it was withdrawn and offered at private sale. And not being able to dispose of it in this way, it was again advertised and offered for sale, as directed by the decree, on the 12th of October 1842 ; and being unable then to sell it at the price agreed on, as its minimum value, by the trustees and all the parties interested, the trustees again advertised it at private sale, and made unusual exertions to obtain a purchaser on favorable terms, without success ; when it was thought advisable by the trustees and the parties interested, to sell the said property for ten thousand dollars, if so much could be obtained for it.” “That the said trustees, although they made every effort to dispose of said property, could not obtain an offer for it, even of the amount of ten thousand dollars, until they were offered that sum, on the 4th of December 1843, by William P. Jenks.”

Had the trustees, instead of accepting the offer and making the sale, as they did, have reported the aforegoing facts to the Chancellor, and asked his permission to sell the property on the terms proposed, at private, instead of public sale, as directed by the decree, can it be doubted that he would have granted the authority they solicited? We think not. If then the trustees have exercised a power, which, if previously applied for, would have been granted, as it were, as a matter of course, a court of equity will, in the absence of proof shewing the inexpediency and injustice of so doing, ratify the act done, in the same manner, as if, the requisite authority had been antecedently applied for and granted.

Were there sufficient grounds before the Chancellor to have, warranted his refusal to ratify the sale in question, is then, the enquiry before us? No testimony has been taken to sustain the allegations, urged for that purpose, in the petition seeking to vacate the sale; although almost all of them that are material, have been denied on oath, in the answers of the trustees ; which answers and the reports of the sale, made by the officers of the court, (who are presumed to have no interest in the subject matter,) must be credited, until over-ruled by proof.

The assent of the grand-mother of Elizabeth Tyson, to the Chancellor’s decree, is a sufficient compliance with the requisition of the will of her grand-father, George Ellicott. The assent of Thomas Tyson, the father and next friend of Elizabeth Tyson, to the sale which has been made of the property, by the trustees, we think fully established by their report and answers.

The allegation that, at the time of the sale made, a much larger sum of money could have been obtained for the property, being wholly unsustained by proof, and explicitly denied by the answers, can be of no avail to the appellant. Nor can it redound to her benefit, that the property, from a general enhancement in value, since the sale, would now sell for more money. The ratification or rejection of the sale must depend on the state of circumstances existing at its date; not on subsequent contingencies. Suppose, instead of appreciating, the property had greatly depreciated since the sale, who would have borne the loss? The purchaser, unquestionably. Upon the plainest principles of justice, then, he must reap the fruits of its appreciation.

The order of the Chancery Court, of the 12th of February 1844, ratifying and confirming the sale, made and reported in this case, is affirmed with costs.

ORDER AFFIRMED, WITH COSTS.