George v. Wood , 94 Miss. 268 ( 1908 )

Fletcher, J.,

delivered the opinion of the court.

In November, 1906, the chancery court of Leflore county entered a decree in the case of Pink Wood v. F. N. Bowles, et al., confirming the report of certain commissioners previously appointed to partite the lands in controversy. By this decree a lien was fixed upon the share of F. N. Bowles on account of certain rent charges; the amount being calculated upon the basis of $5 per acre. The decree provided that Bowles’ share should be sold to satisfy this lien unless the amount be paid within thirty day from the rendition of the decree. From this decree Bowles prosecuted an appeal, but without supersedeas. Pending the appeal, the commissioner appointed for that purpose advertised for sale the land allotted to Bowles, and at the sale William C. George, appellant, became the purchaser, pay: ing $2,750 for the land. This sale was attempted to be confirmed in vacation, although Bowles had filed a protest against the confirmation, alleging that the price paid was grossly inadequate. Disregarding this protest, the chancellor in vacation confirmed the sale and directed the commissioner to make deed to the purchaser. Subsequent to all these proceedings, the supreme court reversed the decree appealed from, holding that the rentals should have been fixed at $4 per acre. Bowles v. Wood, 90 Miss. 742, 44 South. 169. After the filing of the mandate, and at the next succeeding term of the chancery court, all of the proceedings by .which George became the purchaser were set aside, and another decree was entered fixing the charge upon the land of Bowles in accordance with the view of the supreme court and again directing a sale of the property allotted to Bowles in the event that this new and corrected amount was not promptly paid. From this decree George, the purchaser at the sale under the reversed decree, appeals.

Among other matters presented for decision is the meaning of section 657, of the Code of 1906, dealing with confirmations in vacation. That section is as follows:

“Reports of sales or leases, or of partition in kind, where there is no contest, may be made in vacation to the chancellor, and upon five days’ notice to the parties and the purchaser or lessee of the time and place of hearing the application therefor,, or upon such publication for any of the interested parties who-may be nonresidents of this state, or who cannot be found upon diligent inquiry, as is required for nonresident or absent defendants in chancery, may be confirmed by him.”

It is insisted on behalf of the appellant that the qualifying-words, “where there is no contest,” modify alone the phrase next immediately preceding them, and have no reference to reports of sales. The argument is based largely upon the fact that the words “or of partition in kind, where there is no contest” were inserted by the legislature of 1906, thus amending the law as it stood prior to that time; that, since these words came into the statute together as an amendment to existing law, they should be construed together as introducing a new form of vacation business with a modification applicable alone to this new form. We cannot accept this view. The argument is not without force; but we must look at the statute as it stands after amendment, and construe it according to its plain and obvious meaning, considering the whole statute according to the natural signification of the words in the order of grammatical arrangement in which they are placed. So looking at this statute, we think the court was .without power to confirm this sale in vacation, since one party in interest had filed a protest against the confirmation.

It is said, however, that the contest must be a real one, one which presents some substantial reason why the sale should not be confirmed, and that the protest filed in this'case is frivolous, and not such a contest as the statute contemplates. But the protest alleges a gross inadequacy of price, and this charge, if sustained by proof, would furnish ground for the chancellor, in the exercise of a sound discretion, to order a resale. We cannot hold that a bona fide contest, within the meaning of the statute, was not presented by this protest.

Finally, it is earnestly argued that, conceding that the chancery court was without power to confirm in vacation, yet that the purchaser has acquired certain rights by the fact of his being a purchaser, and that he is entitled to have the sale confirmed at the next succeeding term of court, and that to -deny bfm this right is an abuse of judicial discretion. But this contention ignores the effect on the matter of the fact of reversal. The original decree appealed from fixed as a lien upon the land an amount which was afterwards adjudged to be excessive. It was the privilege of Bowles to prevent a sale of the land by paying off and discharging this lien. True, he chose neither to pay the amount nor to supersede the decree. He permitted the land to sell; but, before this sale .was lawfully confirmed, he secured an adjudication that the amount of the lien was excessive, and that a sum substantially less was the true amount which Bowles should have been required to pay. When the whole case came again before tbe chancery court, all the proceedings being in fieri, it was'manifestly the just and equitable course to pursue that Bowles should have, the opportunity to save his property from sale by paying off the amount of the lien, which had been substantially diminished by the action of the supreme court. Whether the sale was proper in the first instance, in the light of the fact that an appeal had been taken, is not presented for decision. We are dealing with the particular facts of this case. Here, before the rights of the purchaser had become final by confirmation, it was judicially ascertained that an injustice had been done Bowles in fixing the amount which he was required to pay. In this attitude of the matter, we think it .was proper for the court to rescind its former action, that the owner of the land might suffer no injustice.

Affirmed and remanded.