Parsons v. Little

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The motion to dismiss the appeal, that was set down to be heard with the cause on its merits, alleges the following: First, that the appellant is not a party to the cause, and cannot appeal from a decree entered therein; second, that the same is not a final decree; third, that appellant did not give the bond required on appeal. The motion to dismiss, we think, must be denied. The appellant, as holder of bonds secured by the deed of trust, had a right to intervene in the proceedings for the protection of her interests, if necessary. Leave to file her petition for intervention was not denied. It was treated as having been properly filed, and was dismissed on its merits. The decree of dismissal was a final one as to her, and she was, therefore, entitled to appeal from it.

The bond was the printed form of a supersedeas bond, conditioned for the payment of damages, as well as costs, and bore the signature of appellant, as principal, and the United States Fidelity Company, as surety. Appellant’s counsel explained to the trial justice that the bond had been intended to secure the costs only, and with his permission, and the consent of the surety, who was present, the word “damages” was erased before approval. Whether the signature of the appellant was necessary to this appeal bond need not be considered. Her attorney represented her, and it must be presumed that he was authorized to make a change which rendered it less onerous, and the surety, consenting thereto, was bound by it. The costs of the motion will be taxed against the appellees.

Passing to the case on its merits, we are of the opinion that no error has been shown in the decree dismissing the petition for intervention.

Whether the sale ought to be considered as made by the trustee under the power conferred in the trust deed, or as a judicial sale under the order of the court, is immaterial, though the latter view is probably the correct one, as the trustee subjected itself to the power of the court in the matter of foreclosure. Nor need we pause to inquire whether the court had the power to change the time for advertisement of the sale that was stipulated in the trust deed. The order was made upon the application, and with the consent of the mortgagor, as well as of the trustee, which was the representative of the holders of the secured bonds. Moreover, a large majority of the holders of the outstanding bonds also gave their approval. Whether the sale as made and reported ought to have been confirmed was a matter within the sound discretion of the court. No one having an interest appeared in opposition to the order of sale or the decree of confirmation, — not even the appellant, who was apparently aware of the entire proceeding.

Although there is a great discrepancy between the amount realized by the sale, and the indebtedness and alleged capital stock of the insolvent corporation, the court was in possession of all the facts relating to the value of the property, and the presumption is in favor of the soundness and justness of its conclusion. There is no fact before us that would justify the inference that there was an abuse of discretion.

The petition for intervention was not even sworn to, and it alleges no fact tending to show irregularity or act of impropriety in the act of sale. Its single allegation, that the sale was made for “a totally inadequate price,” is a conclusion accompanied by no facts showing a foundation tberefor. No affidavits were filed in its support. It is true that reference is made to exhibits which consist of copies of two affidavits of the value of the property of the cereal company, that were made February 2, 1905, in some judicial proceeding at that time relating to the appointment of receivers for that company. What those proceedings were, or what was their result, does not appear. Those affidavits, made more than a year before the petition of intervention was filed, might have truly represented the then value of the property, without furnishing the measure of value at this time. And it is singular, indeed, that if the sale in January, 1906, was for a totally inadequate consideration, no witness was found to make affidavit to the fact. The general allegation, in the unverified petition, of the belief of -the petitioner that there is an agreement between the purchaser, Little, and other bondholders, that this purchase shall enure to their joint benefit, is of no consequence, since there is no allegation of a combination or understanding by them to stifle bidding at the sale, or in any manner prevent the property from selling at a fair price.

The court might well have denied the right to intervene upon a petition that was not even supported by the petitioner’s oath.

A decree confirming a sale cannot be reversed upon such a showing as the appellant has made.

The trust company was her legal representative in all matters relating to the foreclosure, and if she has sustained damages through any misconduct on its part she will probably have some remedy against it.

The decree will be affirmed with costs.

Affirmed.