Bethea v. Rahaim , 196 Miss. 15 ( 1944 )

Ralph L. Stotts was engaged in the grocery and meat market business, which became insolvent. Harry E. Koch was appointed receiver by the chancery court to close out and wind up the business. He got an order of the chancery court to sell the property at private sale as authorized by Section 469, Code of 1930, as amended by Chapter 327, Laws of 1936. The sale was made and confirmed by the court. Later the appellees, the Rahaims, creditors, sought to have the sale set aside upon grounds to be referred to later. The court set the sale aside and ordered another sale, and from that decree this appeal is taken.

The question, therefore, is whether or not the sale ordered and confirmed by the chancery court should be set aside and another sale ordered in its place. The court below held in the affirmative under the facts of this case, and we think correctly.

Stotts' mother, Marie Stotts, owned a grocery and meat market business (which is that involved) which she sold and transferred to her son, Ralph L. Stotts. The latter was inducted into the army and before joining gave his mother power of attorney authorizing her to do with the business whatever he could if present. When the business became insolvent she assigned and transferred all of the assets to Koch to administer for the benefit of its creditors. The chancery court thereafter appointed Koch receiver to carry out the purposes of the assignment. Part of the assets were: "One Warren 12' Meat Counter No. 912, one Warren 6' by 8' Walk-in Meat Cooler, and one Brumur Compressor with 1 1/2 H.P. Motor," which had been theretofore sold and delivered to Mrs. Stotts by the Rahaims, who took a purchase-money reserve title contract to secure the payment therefor, which was on record. This equipment constituted part of the assets transferred by Mrs. Scotts to her son. He knew then of the lien on it for the purchase money. This property was sold separately by the receiver and bought in by appellant Bethea, doing business as Bethea Grocery Company, for $451, which he paid to the receiver. The evidence on the application to set aside the sale showed that there was a balance due thereon of $817 and that the property was worth as much as $1,000. One witness testified that he was ready, willing and able to pay $1,000 for it. Although the receiver knew of the claim of the Rahaims, he gave no notice to them or their attorney of the time and place of the sale of the property. The court in its decree setting aside the sale and ordering another provided that if the Bethea Grocery Company failed to become a purchaser at another sale the receiver should return to it the $451 it paid at the first sale and in addition pay whatever expense, if any, it incurred in moving the property.

Under the principles laid down in Mitchell v. Harris, 43 Miss. 314, and 35 C.J., pp. 100-104, secs. 164-167, inclusive, and notes, the court was justified in setting aside the sale and ordering another. After a sale of property by decree of the chancery court a mere increase of price or inadequacy of price at the time of sale, will not alone justify the court in setting it aside, although such inadequacy or increase in connection with unfairness, injustice or inequity in making the sale would be sufficient. Here we have in this case both inadequacy and unfairness, consisting of the failure to give the Rahaims notice of the time and place of the sale.

Affirmed.