Hildreth v. Turner , 89 Va. 858 ( 1893 )

Richardson, J.,

(after stating the case,) delivered the opinion of the court.

Before proceeding to consider the case on its merits, it is important to ascertain the relations of the appellants to this cause.

I. Is the appellant, Sarah D. Birch, in any substantial, legal sense, a party to this suit, and has she any locus standi in this court ? We think not. She was not an original party, and, if in any sense a party, she can only claim to have become such by her pretended attempt to become a purchaser, through her alleged agent, J. Homer Hildreth, on terms proposed by herself, and in disregard and defiance of the terms prescribed by the decree of sale. The facts disclosed by the record, as already stated, abundantly show that she has had no other connection with the case than to obtrude her peculiar ideas and plans upon the proceedings by the commissioners of sale, in obedience to the decree of court directing such sale; and that she thus obtruded, not to obey and secure the protection of that decree, but to disregard, disobey, and defy it, and its specific terms. . She was never a bidder, legally speaking, either at the first offering, when she defeated the sale by failing and refusing to complete her pretended bid, by making the requisite cash payment, and executing bonds for the deferred payments, or at the second offering, when she, through her said agent, again proposed to become a bidder in defiance of the prescribed terms of sale.

But concede, for the sake of argument, that she might, in a qualified sense, be treated as a bidder, yet, having failed to make good her bid, by making the required cash payment and executing bonds for the deferred payments, she did not, and could not,'thus acquire the status even of an inchoate purchaser. She had not become a bidder even, and the court could not, in the absence of a completed bid, treat her as a bidder, accept her bid, and confirm the sale to her. There is a wide distinction between a bidder at a judicial sale and a purchaser. “Until confirmed by the court, the sale confers no rights. Until then it is a sale only in a popular and not in a judicial or legal sense.” Borer on Judicial Sales, p. 55., §124. “ By the purchase, the purchaser, at a judicial sale, becomes a party to the proceedings in which the sale is made.” Id., p. 66, § 152. A bid at the commissioner’s sale is a mere offer. 2 Barton’s Ch’y Pr. 1094. By his purchase the purchaser becomes a quasi party to the suit. 2 Barton’s Ch’y Pr., p. 1101, § 353.

In Va. Fire and Marine Ins. Co. et al. v. Cottrell, 80 Va. 857, Lewis, P., says : “ Until the sale has been confirmed, the proceeding is in fieri; the bidder is not considered a purchaser, * * * nor is he compellable before confirmation to complete his purchase; but as soon as,the sale is absolutely confirmed, then the contract becomes complete—the bidder, by the acceptance of his bid, becomes a purchaser, and he may be compelled by the process of the court to comply with his contract.”

“ The court affirms the sale or not at its discretion, and until affirmed the supposed sale is no sale, and confers no rights.” Sorer on Jud. Sales, p. 10, § 15. But it is useless to multiply authorities in support of principles so long and thoroughly well settled. Sarah D. Birch, then, was not an original party to this suit, has done nothing since to entitle her to be considered a party, nor is she properly a party to this appeal; and, not being a party, she has no rights to demand, no wrongs to complain of, and no right of appeal. In fact, this court, from the record, cannot judicially know that Sarah D. Birch ever existed. As to her, therefore, the appeal must be treated as improvidently awarded.

II. Let us now look to the attitude of J. Homer Hildreth, and the complaints made by him. He is, in a qualified sense, a party—not originally, but by reason of his having filed, pending the suit in the court below, a petition asserting a claim against the defendant, James N. Bethune. In his petition he does not ask to be made a party, and is not formally made a party by any decree in the cause, but his debt is reported by the master.

The first ground of objection assigned by him is, that it was error to make sale of the land until the accounts of James U. Bethune, receiver, had been stated, and the rents of “ Ellway ” applied to the debt of Edward O. Turner. This objection is clearly without merit. By the decree entered in the cause on the 12th of September, 1887, a master commissioner was ordered to take an account of the liens, and their priorities,on the real estate in question ; and said master took the account, and réturned and filed his report thereof on the 23d of November, 1887; and the matter was again referred to the master to ascertain whether or not any liability had been incurred by James A. Bethune on account of his suretyship for James N. Bethune on his bond as committee of “Blind Tom,” &c. This account was taken, and the report of the master was returned and filed on the 15th of September, 1890. By the decree of December 16th, 1890, both of these reports were confirmed, and without objection or exception to either of them. If there was any error in these reports, or either of them, the objection should have been pointed out, by proper exceptions, before said decree of confirmation. There is no error apparent on the face of either of said reports; and it is too late now to ask for a reversal of the decree on the supposed ground of error assigned. The well-recognized doctrine is, that “ exceptions partake of the nature of special demurrers, and hence, as the authorities say, the party excepting must ‘ put his .finger on the error,’ that the court may see what it has to decide. It is too late", however, to do so for the first time in the appellate court, unless the report be erroneous on its face.” Lewis, P., in Cralle v. Cralle, 84 Va. 198. But, in point of fact, the land in question was rented for enough to pay the interest on the Turner debt, and the rent was so applied from year to year. There is, therefore, in no view, of the case, anything in this objection.

The second ground of error assigned by J. Homer Hildreth Is that the pretended bid of Sarah D. Birch at the offering of the tract of land, “Ellway,” on the 23d day of February, 1891, was not accepted, and time given her (sixty days) within which to examine into the title. The proposition itself is preposterous in the extreme; and there certainly is nothing in law or practice in this state to sustain it. But this objection is but a re-hash of the case attempted to be set up for Sarah D. Birch, which, as already shown, is no case at all. Here Sarah D. Birch, if a real entity, had all the time during which “ Ellway ” was advertised for sale, prior to the 23d day of February, 1891, when the land was first advertised to be sold, and when the sale was defeated by her refusal, by her said agent, to comply with the prescribed terms of sale, by making the requisite cash payment and executing bonds for the deferred payments. She then had from the 23d day of February until the succeeding 20th day of April, the time when the sale was confirmed, being fifty-six days, within which to examine into the title to the property. Surely this was ample, and more than ample, time; but during all this period she fails to comply with the terms of sale, by offering to make good her said pretended bid. Under these circumstances the court below, in its decree of confirmation, said, and properly said: “And it appearing that no upset bid has been made for the property in the bill and proceedings mentioned, and that Sarah D. Birch has not tendered a compliance with her bid of the 23d of February, 1891, it is further adjudged, ordered, and decreed that the report of A. D. Payne, commissioner of sale, be, and is hereby, confirmed,” &c.

The language of the report of the 20th of April, 1891, shows that both commissioners were present together at each bidding ; that no objections were made to the offering of the land for sale on either occasion; that both commissioners united in the advertisement of the land at each offering—that is, on the 23d day of February, 1891, and on the 7th day of April, 1891, at the latter of which the sale was effected. And while a copy of the advertisement is not made a part of the record, as it should have been, yet it was stated in argument, and not denied, that an inspection of it will show that it specified the time, place, and'terms of sale, and was signed by both commissioners. It was, therefore, a sale by both commissioners : and its validity cannot be affected by the fact that one of them (Commissioner Campbell) declined to join in the report, and made himself a separate report, asking, in effect, that the sale to Mrs..Birch be confirmed, and also for a rule against her to show cause why the sale should not be confirmed to her ; thus blending two inconsistent and impossible things, both of which were beyond the power of the court. First—Sarah D. Birch, by her said agent, at the offering on the 23d of February, 1891, refused to make her bid good, by complying with the terms of sale, and was, therefore, not a bidder proper, much less a purchaser. Second—she, if in existence, was a non-resident of this state, and therefore beyond the jurisdiction and power of the court.

The commissioners, when the property was the second time offered for sale, and Mrs. Birch, through her said agent, Hildreth, declared her purpose to repeat her farce of February 23d, had the right, and it was their duty, to see that the sale was not again defeated by such means. “ The commissioners may decline to permit the auctioneer to announce the bids of persons who give no satisfactory assurances of their ability and willingness to comply, for bona-fide bidders are entitled to that protection. 2 Bart. Ch’y Pr., p. 1079, § 340. So an insolvent purchaser at a judicial sale, who declares himself unable to give a bond that day for the payment of the price,cannot, as a matter of right, demand time to procure the bond, where he gives no satisfactory assurance of his ability to do so, and re-sale may be had under such circumstances.” U. S. Gen’l Digest, Vol. V., p. 1302, § 9. This doctrine is especially applicable in a case like this, where the parties complaining have once baffled the commissioners, and openly proclaim their purpose to do so again.

In the conduct of Sarah D. Birch, and of her agent, J. Homer Hildreth, there is much to blame—nothing to commend. Neither of them have any just cause of complaint.

The decrees complained of are, under the circumstances, entirely proper, and the same must be affirmed.

Decrees affirmed.