#### Maria F. Baily *vs.*Frances C. Baily, et als.

Where a Commissioner sells land without having advertised the sale for the' time prescribed by the order, the sale is invalid, and will be set aside.

BEFORE DARGAN, OH., AT LAURENS, JUNE SITTINGS, 1857.

Tbis case came before tbe Court by motion to set aside a sale of land made by tbe Commissioner. His report states tbe facts and is as follows:

“ Tbe Commissioner respectfully reports that be offered for sale tbe land and premises described in tbe pleadings in tbis' case, on tbe first Monday in January, 1857, at Laurens Court House, and tbe same was bid off by John Martin, at and for tbe price of one thousand dollars, be being tbe highest and only bidder; that tbe said John Martin shortly afterwards offered to give bond and security for tbe purchase money, and at tbe same time demanded titles; that prior to tbis offer and demand, tbe Commissioner bad been notified that tbe confirmation of tbe sale would be resisted, and be declined making tbe titles or taking tbe bond, deeming it advisable to have tbe judgment of tbe Court as to tbe validity of tbe sale, before doing so. Tbe Commissioner deems it proper to bring to tbe view of tbe Court, tbe circumstances attending tbe sale, and tbe ground upon which its confirmation is resisted. After the bill was filed and tbe papers were in readiness for obtaining tbe order for tbe sale of tbe land, they were delivered to one of tbe Solicitors to obtain tbe order at Chambers, in Columbia, in December last; tbe parties were exceedingly anxious to have tbe land sold on sale day, in January, 1857, *393■believing that said land would sell better on that day than on any subsequent sale day thereafter; the Commissioner not doubting that the order had been obtained, although it had not then reached him, on the 15th day of December, 1856, advertised the land for sale on the 1st Monday in January following, but when he received the, order, he found that it bore date on the 17th December, and consequently left but twenty days from the signing of the order to the day of sale; including the day on which the order was granted and the day of sale, although the land was actually advertised for over twenty-one days. It sold for less than its value. The Commissioner submits to the Court whether under the circumstances the sale should be confirmed, the bond taken for the purchase money, and the titles executed.”

His Honor made the following order:

Dargan, Ch. On hearing the report of the Commissioner, of the sale of the land made by him in this case, from which it appears that the twenty-one days public notice of said sale had not been given, as required by the order directing the sale, and that the land did not sell within three hundred dollars of its value, it is, on motion of Young & Simpson, Complainant’s Solicitors, ordered that the sale be set aside, and that the Commissioner do resell the said land and premises at Laurens Court House, on the first Monday in October next, or some convenient sale day thereafter, the Commissioner having first given at least twenty-one days public notice of said sale, upon the same terms as directed by this Court in its previous order for the sale thereof.

It is further ordered that the nett proceeds of said sale be distributed, when collected, amongst the parties entitled thereto, according to their respective legal interests, to 'be ascertained, if necessary, by the future order of this Court.

*394The purchaser, John Martin, appealed, and now moved this Court to reverse the order on the grounds:

1. Because the sale made of the land when he became the purchaser was valid, and ought to have been confirmed.

2. Because it was not shown that any other person would have given more for the land than he did, and if there was any irregularity in the sale he did not know it, and it is submitted that a mere irregularity will not defeat the purchaser’s right to the property purchased.

Sullivan, for appellant,

cited *Young*vs. Teague, Bail. Eq. 13; *Maddox*vs. *Sullivan,*2 Bich. 4.

*Yo,ung & Simpson,*contra.

The opinion of the Court was delivered by

DargAN, Ch.

In a sheriff’s sale, the omission to advertise in the manner, and for the time prescribed by law, or even the omission to advertise at all, is an irregularity that does not vitiate the sale. The object of a sale by a sheriff by virtue of an execution, and a sale under a decree in equity, are for purposes widely different, and it does not follow because the want of due notice does not invalidate a sale made by a sheriff, that the same rule must prevail in sales made by a commissioner, or master under a decree in equity.

As to sales made under the order of this Court, the law does not prescribe the length of time notice shall be given. It ought to be a reasonable time, and what would be reasonable time in one case, might not be so in another. It is left to the discretion of the Court. As a general rule the Court has adopted the rule as to notice, prescribed by the Statute Law in cases of sheriffs’ sales. The object desired, and intended *395to be secured, is notoriety and competition. And it is obvious, that where these objects can be obtained by a shorter notice, the Court being tied down by no positive requirement of the law, may, with propriety and without injury to any one, dispense with the notice of twenty-one days usually required.

But where the Court has made an order of sale, of which a notice is to be given by advertisement for a given time, such direction, as well as the other terms, become the law of the case. It becomes the condition, on which the authority is to be exercised, the non-performance of which will destroy the power.

In this case, the decree directed the sale to be advertised for twenty-one days, and the .advertisement was for twenty days.. If this departure from the directions of the order, does not invalidate the sale, why may not a notice of fifteen days,, or even of ten, be sufficient, and how, with any consistency, could we stop short of applying the rule that prevails in sheriffs’ sales on this subject ? The Court, could not, without great danger to the rights and interests of the parties to be' affected by its sales, dispense with the condition of notice, and allow a commissioner or master to modify the terms at. his discretion: the conditions on which he was to exercise', his authority. Such a discretion was never intended to be' reposed in that officer. In this case, I will say,, *en passant,,*that no blame is imputable to the commissioner, who very properly, when he learned that the land thus irregularly sold was worth three hundred dollars more than the bid of John Martin, refused to execute and deliver titles, and submitted the matter for the judgment of the Court.

It is true, that in this State, we have adopted a different, rule from that which prevails in the Court of Chancery in England, in regard to opening the biddings, on account of the inadequacy of the bid at which the property has been knocked down, or because some one offers more. In such a *396case, otherwise fairly conducted, the contract is valid and binding, and needs no confirmation by the judgment of the Court. Tbe decree investing the commissioner with authority to sell, is held sufficient, if he conforms to the conditions of his authority. But this rule as to not opening the biddings for deficiency of price, renders it more important, that the conditions prescribed should be rigidly observed. It would be unsafe, and extremely unwise, to say, that while on the one hand the sale cannot be set aside, and the biddings opened, however inadequate the bid, on the other hand to hold, that due notice of the sale may be dispensed with by the selling officer of the Court.

This Court is of opinion that the sale, in this case, was invalid, for the want of due notice. It is ordered and decreed that the circuit decree be affirmed, and the appeal be dismissed.

Dtjnkin and Wardlaw, CC., concurred.

JOHNSTON, Ch., absent.

*Appeal dismissed.*