President of Farmers' Bank v. Clarke , 28 Md. 145 ( 1868 )

Alvey, J.,

delivered the opinion of this Court:

The record before us embraces two appeals taken by the same parties, from orders of the Circuit Court for Prince George’s county, as a Court of Equity. The first of these appeals, being that taken from the order of the 28th of December, 1865, overruling exccptio is to, and ratifying, the sale made and reported by the trustees, presents three distinct grounds of objection to the sale:

1st. That due and legal notice as required by the decree of sale, was not given, and for want of such sufficient notice the land was not fairly put into market, and consequently there was not proper competition at the sale.

2d. That the price obtained for the land was inadequate.

3d. That the sale was eifeeted at the price reported, by collusion between Wilson, the, purchaser, and a certain David P. Moore, who was also a bidder at the sale.

These propositions embrace the full scope of the exceptions:

1. While it is fully conceded that the notice given of the first proposed sale was ample, it is contended that that given of the deterred sale was insufficient, and that the sale made on the 24th of October, 1865, should be set aside because other notice than the publication of the advertisement in the two Marlboro’ papers was contemplated by the decree authorizing and directing the sale of .the property. We think, however, that the notice actually given, under the circumstances of the case, and in the absence of any evidence of surprise or prejudice to those interested, was sufficient. It is true, the decree directed the trustees to give at least three weeks previous notice of the time, place, manner and terms of sale, by .advertisement inserted in the newspapers printed in Upper Marlboro’, mid such other notice as they should think proper. This discretion conferred upon the trustees was exercised to the fullest extent in reference to the first offer of the property, and it seems to have wholly failed in bringing together any considerable number of persons at the time and place designated for the sale, or of producing any competition whatever among bidders. After this first effort, we think the trustees were justified in concluding that a more extensive publication of the notice than in the two Marlboro’ papers was useless, and would but entail unnecessary expense upon the estate, which it was their duty to avoid, if it could be done without prejudice to those interested in obtaining the largest price for the property.

That the efforts of the trustees were to obtain a fair price, and that they acted in all that was done from the best motives, are facts uncontroverted. They have sworn that the sale was fairly made, and we are bound to accept their statement as true, until shewn to be otherwise. This exception, as to the insufficiency of notice, stands upon the nahed allegation, without the least attempt to show that there were persons who would likely have been bidders at the sale, left uninformed, or who were deceived or misled by the want of more extensive notice than was actually given. We can perceive no reason therefore for regarding the notice given by the trustees as insufficient, under all the circumstances of the case.

2. The next point is as to the inadequacy of price. This exception was attempted to be sustained by proof taken under the order of the Court; but in our opinion, the exceptant failed. There seems to be a great contrariety of opinion among the witnesses examined, as to the value of the land. One thing, however, seems to be clearly established by the evidence, and that is, the farm was in bad condition, and such as most likely to detract seriously from its value in the estimation of bidders. While many of the witnesses estimated the value of the land higher than the price accepted by the trustees, none of them were willing to become purchasers at that price, nor did they know of any person who would give more, nor have the exceptants themselves informed the Court that they knew of any person who would give more, if the property were again exposed to sale. If the property was really of much greater value than the price accepted by the trustees, the creditors, the parties deeply interested in obtaining the largest possible price for it, should have attended the sale, and seen to it, that a better price was obtained than that reported by the trustees. These creditors, the ex-ceptants, do not pretend that they were uninformed of the time and place of sale, and if less has been accepted than the property is really worth, it may be attributed to the fault of the creditors themselves, rather than to any other cause. And sales, like the one under consideration, should not be vacated and set aside for causes that the parties interested might, with reasonable diligence and effort, have obviated. Every intendment will be made to support such sales; and it is only where the Court can see that injustice will be done by the ratification of a sale, to a party not in default, that it will interfere to prevent it. It would certainly bo a departure from the well established practice of the Courts of Equity of this state, to set aside a sale bona fide made, Tipon the mere diversity of opinion among witnesses, as to the value of the property, unless it were apparent that the price reported was so grossly inadequate as to do injury to parties not in default. Here the evidence fails to convince us of any thing like such gross inadequacy of price as would justify the rejection of the sale.

3. We think the exception founded upon the alleged collu-^, sion between Wilson and Moore, likewise unsustained hythe evidence. The trustees and Wilson all swear to the fairness of the sale, and we fail to discover any thing in the evidence that could, by reasonable construction, be made to establish that sort of collusion and fraud that would vitiate the sale, and require the Court to set it aside.

(Decided 6th February, 1868.)

As to the second appeal, that taken from the order of the 21st of February, 1866, allowing the substitution of Walker in the place of Wilson, as purchaser, we can perceive no interest in the appellants to authorize them to maintain the appeal in this Court. There is no evidence that there was any profit made by Wilson by the transfer to Walker. Be this however as it may, it could form no reason for disallowing the substitution, unless it be shewn that there was collusion or combination, such as would affect the validity of the sale. But here there is no pretense that such was the case. The ratification or rejection of the sale must depend on the state of facts existing at its date, and not on subsequent events. As the purchaser is made to bear all loss by depreciation subsequent to the time of sale, he should be entitled to all profit that he may be able to make of the property after that time. The Court, and parties to the proceeding under which the land was sold, were only interested in the substitution to the extent of having a responsible party, and one who would readily comply with the terms of sale, put in the place of the original ■purchaser; and there is not the least pretense that the party substituted is less responsible than the original purchaser, or that he will be less prompt in complying with the terms of sale. We think, therefore, that this last appeal should be dismissed.

The order of the 28th of December, 1865, overruling exceptions to, and ratifying the sale made and reported by the trustees in this case, is affirmed, and' the appeal taken from the order of 21st of February, 1866, allowing the substitution of J. T. Walker, in the stead of Thomas R. Wilson, the original purchaser, is dismissed.

Order affirmed, and second appeal dismissed.