#### Doris Lester HICKS v. Ida HICKS et al., etc.

77-265.

Supreme Court of Alabama.

Sept. 15, 1978.

*862John F. Dillon, IV and Jennie Lee Kelley of Dillon & Kelley, Alexander City, for appellant.

Sam M. Phelps of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellees.

BLOODWORTH, Justice.

This is an appeal from a judgment confirming the sale of land for division. The decree ordering the sale was affirmed by this Court in *Hicks v. Hicks,*348 So.2d 1368 (Ala.1977). Appellant, plaintiff in the partition suit, is entitled to one-sixth of the proceeds of the sale. Appellees are entitled to the remaining five-sixths.

The land is 1441 acres of timberland in Pike and Crenshaw Counties. A public sale was conducted by the clerk of the circuit court, resulting in a sale of the 1441 acres to Paul Bryant, Jr., the only bidder, for $50,000. The purchaser later testified that he made his bid on behalf of the appellees (one of whom is his wife), the other owners of the land.

In his report to the trial court, the clerk recommended confirmation of the sale for $50,000, which he stated was, in his judgment, the reasonable cash market value of the land. Appellant filed an objection to confirmation and a motion to set aside the sale on the following grounds: (1) the sale price of $50,000 for 1441 acres is grossly inadequate and grossly disproportionate to its real value; (2) the present market value of land in Pike County and Crenshaw County is substantially more than the amount bid, $35 per acre; (3) the sole bidder is not a stranger to the partition suit; (4) the land was not sold so as to produce the highest possible sum for division; and, (5) if resold at a public or private sale, the land will bring substantially more than $50,000.

After a hearing on the objection and motion, the trial court confirmed the sale. This appeal followed.

Each case of this kind must be determined on its own facts. *Berman v. Patton,*249 Ala. 317, 31 So.2d 134 (1947). Appellant recognizes that confirmation of judicial sales should not lightly be withheld, but she contends that her objections to confirmation in this instance are valid.

The purchaser at this sale is not a stranger to the proceedings, and this makes a difference. *De Loach v. White,*202 Ala. 429, 80 So. 813 (1919). The standard for reviewing judicial sales when the purchaser is not a stranger is stated in *Spence v. Spence,*239 Ala. 480, 487, 195 So. 717, 722-23 (1940):

> “The purchaser at such a sale is due to have it confirmed if the price bid is measurably adequate, or not greatly less than its market value, although some of the parties may offer to bid a much larger sum at a resale.”

*Accord, Sanford v. Sanford,*355 So.2d 365 (Ala.1978).

At the hearing on the motion, appellant presented testimony of an experienced real estate appraiser, who had made a personal inspection of the property, that the fair market value of the land is between $100,000 and $150,000. Appellant also placed in evidence the estate tax return for the estate of W. A. Hicks, original owner of the land, which valued the land at $144,100 in December 1974.

Appellees claim that there is conflicting opinion evidence as to the value of the land, ranging from $150,000 down to less than the sales price, $50,000. The evidence as to the low value was given by three witnesses. One, a Mr. Arrons, admitted that he had *no opinion*as to the fair market value on the date of sale, and would not be interested in buying the land at any price. Another, a Mr. Fowler, admitted that he too had *no opinion*as to the fair market value, and that the land had no value to him. The *863third, the clerk who conducted the sale, stated that he had *no opinion*as to the fair market value because he had not seen the land, but that he recommended confirmation only because there were others present at the sale although they did not bid. Thus, it is clear that these witnesses do not present any convincing evidence as to the value of the land as opposed to the testimony of appellant’s appraiser, and in this state of the evidence, it appears that the sales price was not measurably adequate.

Appellees further contend that any inadequacy in sales price is attributable to the appellant since she had a representative at the bidding but did not bid nor notify her post-sale bidder. Mr. Justice Embry, in dissent, cites *Wilson v. Henderson,*206 Ala. 472, 90 So. 285 (1921), and *Helena Coal Co.*v. *Sibley,*132 Ala. 651, 32 So. 718 (1902) for this proposition. But in those cases there was shown some active participation or intimidation of bidders. These factors have not been shown in the instant case.

The trial court concluded that to set aside the sale would be unfair to the defendants. But, as appellant contends, it is not unfair to make the bidder pay a fair price for the land if he wishes to buy it, and it is unfair to the appellant to make her take one-sixth of an inadequate price as her share in the sale.

A new sale is in order because the overriding objective in these cases is to sell the property so as to realize the best price obtainable with regard to fairness and the rights of all concerned. *Copeland v. Giles,*271 Ala. 302, 123 So.2d 147 (1960).

Appellant, before confirmation, found a buyer willing to give two and one-half times the amount bid at the sale ($125,000) and willing to deposit this amount in court to guarantee that price on resale. In a similar case, this Court affirmed a trial court which ordered a resale when complainants found a purchaser willing to give an amount greatly in excess of the bid price and who deposited that amount in court. *Taylor v. Wilson,*233 Ala. 182, 170 So. 833 (1936). See also *Jones v. Bridges,*336 So.2d 1113 (Ala.1976), where a higher subsequent bid was deposited and resale was conditioned upon opening the bidding at that amount, and *Deverell v. Horton,*285 Ala. 588, 234 So.2d 879 (1970), where a higher subsequent bid was considered to be evidence of the inadequacy of the initial sales price.

It is thus that we reverse and remand this cause to the trial court with directions to order another public sale on condition that the amount of $125,000 is deposited by K. M. Wall by certified or cashier’s check with the Clerk of the Circuit Court, within 30 days from the date of the release of this opinion, such sum to become the opening bid; and, if said K. M. Wall fails in this condition, the cause to stand affirmed.

REVERSED AND REMANDED WITH DIRECTIONS, ON CONDITION.

TORBERT, C. J., and MADDOX, FAULKNER, JONES and SHORES, JJ., concur.

ALMON, EMBRY and BEATTY, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent.

This case is before this court for the second time. On the previous appeal, from a judgment ordering a sale for division of certain lands, a plurality of the court affirmed. See *Hicks v. Hicks,*348 So.2d 1368 (Ala.1977).

A sale at public auction was then conducted by the clerk of the circuit court after proper advertisement according to law. The clerk reported to the trial court that the land was sold to one Paul Bryant, Jr., for the sum of $50,000, *which the clerk reported as being the reasonable cash market value of the land, in his best judgment.*

In my judgment, the only issue for review is whether, under the facts of this particular case, the trial judge abused his discretion when he confirmed the sale for division.

Doris Lester Hicks prevailed in her contention that she was entitled to require a *864sale for division of the entire tract of land although the other parties in interest had offered to allow her to select any 240 acre portion of it (a one-sixth interest). Upon sale, she is entitled to receive one-sixth of the sale price. See *Hicks v. Hicks,*supra.

One representing her attended the bidding but made no bid in her behalf. She, Doris, made no attempt to notify prospective bidders and procure their attendance at the sale. The public sale of the timberland was attended by those in the business of buying and selling that type land, approximately ten in number. The only bid made, in the amount of $50,000, was not by a stranger to the proceedings. Doris, nor anyone on her behalf, made any effort to notify the post-sale bidder of the sale or to secure his presence at the bidding. At the hearing on the objection to confirmation and motion to set aside the sale the evidence was disputed on the question of the adequacy of the sale price of $50,000 for the land; that is to say, whether $50,000 represented the fair market value of the land, or less or more than its value.

In actions for judicial sale of real property for division of the proceeds among joint owners or tenants in common, confirmation of such sales rests in the wise discretion of the trial court to be exercised according to the rules established by statutes and case-law; further, that discretion will not be revised except for abuse in exercising it. Section 6-9-147, Code 1975. *Martin v. Jones,*268 Ala. 286, 105 So.2d 860; *Spence*v. *Spence,*239 Ala. 480, 195 So. 717.

Where the purchaser at a judicial sale is not a stranger to the proceedings, the sale will be confirmed if the bid price is measurably adequate, or not greatly less than its market value even though an offer is made to bid a much larger sum at resale; and, on review of an *ore tenus*case dealing with a sale of land for division the evidence is not weighed as to its reasonably satisfying effect on the issues tendered; rather, in considering it, all favorable presumptions are indulged to sustain the trial court’s conclusions. Those conclusions will not be disturbed unless they are palpably erroneous or manifestly unjust. *Sanford v. Sanford,*355 So.2d 365 (Ala.1978).

Appellant, Doris Hicks, contends there was abuse of discretion in confirming the sale for the reasons made the grounds of objection and of the motion to set aside the sale, set out earlier in the majority opinion.

The trial court, in its judgment confirming the sale, concluded from the evidence at the confirmation hearing that there was no showing that the sale was infected with fraud, oppression, irregularity, or error, that even if Paul W. Bryant, Jr., be considered a party, his offer of $50,000 appeared to be a bona fide one under the evidence and did not raise an inference or presumption of fraud; that the issue of confirmation should be decided with a view to fairness and regard to the rights of all concerned; that the sale was open to the public; that all parties and strangers had a fair right to bid; that the sale determined what a willing purchaser would pay a willing seller; that the real value of the property was fairly established when sold by the clerk of the court, and to set aside the sale because of the offer (of $125,000) made in open court at the confirmation hearing by Doris Hicks’ counsel would be unfair to defendants.

The conclusions regarding actual value reached by the trial court were based upon conflicting opinion evidence of value ranging from $100,000 — $150,000 down to $50,-000 — less than $50,000. The trial court determined, as it had the right, that the $50,-000 figure, under the evidence, more accurately reflected the fair market value of the land than did the $100,000 — $150,000 figure.

Having made that determination, the sale was due to be confirmed even though the purchaser was not a stranger to the proceedings because the finding necessarily was that the price was measurably adequate and not greatly less than market value in spite of the post-sale higher bid. *Sanford v. Sanford,*supra.

No doubt, refusal of the trial court to set aside the sale because of the $125,000 post-sale offer made in open court by plaintiff’s (Doris Hicks’) counsel on the basis that to *865do so would be unfair to defendants was founded on the evidence that not only was Doris Hicks represented at the sale, and no bid made in her behalf, neither was any effort made to notify the post-sale bidder of the prior public sale and to procure his presence there. It follows that within the province of the trial court’s discretion was the conclusion that inadequacy of price, if any, paid at the public sale could properly be attributable to plaintiff, Doris Hicks, and she would not be permitted, after sale, to contend that the land was not sold for its fair value. See *Wilson v. Henderson,*206 Ala. 472, 90 So. 285 (1921), and *Helena Coal Co. v. Sibley,*132 Ala. 651, 32 So. 718 (1902).

There was no abuse of discretion upon the part of the trial court when the judgment of confirmation was entered, therefore I would affirm the judgment.

ALMON and BEATTY, JJ., concur.