CHARLESTON.

#### Commercial Investment Trust *v.*Hattie Lee Browning *et als.*

(No. 6650)

Submitted February 11, 1930.

Decided February 18, 1930.

*586
      *Samuel Solins,*for appellant.

*Froe, Capehart é Miller,*for appellees.

Woods, Judge:

This is a suit against Hattie Lee Browning, in her own right, and as administratrix of the estate of Samuel L. Browning, deceased, and the surety on her official bond, seeking a decretal judgment against them for $188.00. The lower court found for the defendants and dismissed the plaintiff’s bill. The latter appeals.

Samuel L. Browning purchased a $1,100.00 Nash automobile under a conditional sales contract, on June 26, 1926, at the time executing his note for $756.00 for the unpaid portion of the purchase price.. This note was payable in twelve monthly installments of $63.00 each. The amount involved in this suit represents the balance due on the last three installments. During the early part of May, 1927, Browning ran his car over an embankment, some distance east of the city of Welch, and was killed. The car was not moved from the place of the accident. On August 23, 1927, plaintiff (in *587tbe absence of any action on tbe part of tbe administratrix) caused an appraisement to be made of decedent’s personal property. Tbe car was not included therein. On the following day its attorney wrote administratrix (then a nonresident) advising her that be intended to sell tbe car at public auction at tbe front door of tbe court bouse on September 10, 1927, if tbe said installments were not paid prior to the last mentioned date. Tbe sale was advertised in tbe manner prescribed by law. On tbe latter date two tires and a wheel, which bad been removed from tbe car, were exhibited at tbe court bouse, and tbe car sold for $1.00.

Tbe bill alleges, among other things, that tbe administra-trix bad left tbe state, had failed to return tbe inventory and make settlement of her accounts as required by law, bad squandered tbe estate and become insolvent, and that plaintiff’s claim was tbe only indebtedness outstanding. *Thompson*v. Nowlin, 51 *W.*Va. 346, 41 S. E. 178. Tbe answers of tbe administratrix and tbe surety set up tbe re-possession and sale of tbe car by plaintiff; that it was actually worth far more than enough to satisfy tbe amount sued for; and that plaintiff bad not protected tbe interests of tbe Browning estate — tbe car not having been exhibited at tbe place of sale. Thus tbe validity of tbe alleged debt was put in issue.

There is evidence that tbe ear was worth $500.00 as it stood, a month after tbe wreck, and that tbe administratrix was offered $400.00 therefor sometime.before the plaintiff claims to have re-possessed same, but that' she was of opinion that she could not sell it because it was not paid for. Attorney for tbe plaintiff testified that it would have cost $35.00 to have got tbe car into tbe road; that tbe two tires and tbe wheel, heretofore referred to, were exhibited to tbe prospective bidders, with tbe explanation that tbe other parts were at tbe place of tbe accident; and that be sold tbe whole car.

When plaintiff elected to re-possess tbe car, it thereby obligated itself to dispose of same at a fair sale, in order to protect tbe estate of tbe decedent against any undue loss by reason thereof. It is generally required that personal property sold under execution shall be present at tbe time and place of sale so that it can be readily examined by tbe bidders. *58823 C. J. 631; 10 R. C. L. 1299, 1300. Such was the rule at common law. *Shimer*v. *Mosher,*39 Hun. 153. The Conditional Sales Act (Chapter 99-A, Code, 1923, as.amended and re-enacted by Chapter 64, Acts 1925) being silent on the subject, personal property sold at public auction under section 19 thereof ordinarily must be physically at the place of sale. *Strickland*v. *Hare*& *Chase, Inc.,*216 N. Y. S. 506. The very fact that the ear was not present *in toto*detracted from its salability. Purchasers would doubt whether anything of value yet remained on the car. Plaintiff could have held the sale in the immediate vicinity of the ear and still have complied with the statute.

While it is contended by the plaintiff that the ear would not have sold for more than $5.00, yet the fact that it repossessed the same, thereby incurring certain expenses incident to the sale thereof, shows that it was regarded of substantial value at the time of its re-possession. If such was the case, the defendants were hurt by the improper sale. The burden of establishing the validity of the debt was upon the plaintiff. The trial court has found for the defendants on that issue. Under the circumstances we cannot say its finding is at variance with the undisputed evidence or contrary to the plain preponderance of the whole evidence. *Kincaid*v. *Evans,*106 W. Va. 605, 146 S. E. 620.

. The finding of the lower court is accordingly affirmed.

*Affirmed.*