Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-10-01

PERSONS proposing W plu, ~ ID HIo loiiy Oisio
no one can complain of; his property should
not be taken from him until the terms upon
which he offers to part with it are complied
with, particularly if he has not tried TO de-
ceiye and defraud bidders. Such being the
rule of law as regards the Olcner, how Is 1t
as regards officers appointed to sell property
under DEGREES of courts? These have the
power to accomplish the object OF their APP
pointment, and in doing so are not bound
to run in an iron rat, but are invested with
a reasonable discretion as to the manner Of
its exercise, which they are not at liberty to
overlook or disregard. They have duties to
perform to the complainant, the defendant,
the purchaser and the court, and their best
judgment to each is demanded. In this
case, both the complainant and defendant
were corporations, and of course could only
act through agents. These commissioners,
besides being the officers Of the court, were
entrusted with the interests Of the COM
plainant, while the commissioner is entrus-
ed by the Court with the sale, it is usually
made by an auctioneer, but the latter should
not be substituted for the former-he Is the
naereSt agent an this matter. Petitioners
admit that the commissioners, as such,
never accepted their bid, and that they pre-
Guided any implied acceptance by stating
beforehand that they would not take any
bid less than the minimum, but insist that
the action of the auctiOneer made it sale
in spite of what they did Or said, added to
the FACT that the commissioners had no pow
er to do as they did. In view of the facts,
am clearly of the opinion that the acts and
dOings of the auctiOneer, under the circum-
stances, do not cid them, and doubt not his
acts are more traceable to habit than any
definite intention that he was affecting, or
could affect, the rights of anybody. We
recur to the other questionable power of
commissioners ordered to make judicial
sales. The principle upon which such Off
GERS act are so well laid down by the SUI
preme Court Of the United States in the
case of Blossom VS.. Railroad Company,
Wallace, 1876, and the cases there cited, that
shall refrain from citing any other case.
That case shows that they have, and should
have, a very enlarged discretion, the rules
governing which are not 10 be laid
down in one general principle, but
must be referred to the particular case.
The question in no case that | have seen
is made to turn upon the fact whether the
Commissioner followed the decree literally
or not, but whether in view of all the sur
rounding circumstances, at the time of the
sale, he acted fairly and honestly in regard
to the rights of all parties. He may in
proper case refuse to execute the decree,
the circumstances existing at the time the
decree was made, may have SO changed
that he would censurable, if he allowed the
sale to 90 on. So for many causes, after
advertisement, he may postpone the sale, or
withdraw it altogether, in positive violation
of the decree, and why should he not, in
proper case, one in which he would not be
justified, in forbidding the sale absolutely,
make offer of the property, cOnditionally,
not that the court would be bound by it,
but as advisory to the Court and in the
discharge of a delicate duty. about which,
he may reasonably have doubts? 1t is the
duty Of the Commissioner to see that sale
be fairly conducted, and under such circum-
stances as to ensure the best price for the
property. The announcement of this safe
and indispensable principle, carries with it,
the idea, that the Commissioner, must nee
essarily have some discretion. Few sales
are made under the precise condition Of
things, that existed at the time the decree
was entered-and a discretion is allowed
because Of this fact, and the rules by
which this discretion is controlled,
must vary with each case. The only
certain and unqualified rule that
can be safely summoned, is that the sale
must be conducted in good faith to all par
ties. Bad faith, generally censTable, here
becomes odiOus.
The case of Barring x drilling VS.. Moore,
9Th Paige As, presents just such case. In
that case the property was put up upon a
decree of resale, and out of the proceeds the
past purchase was to be repaid and the bal
ance deposited in bank at Albany. Whip
pie bid s. 800, and the property was knocked
down to him. Then, for the first time, the
commissioner, under the order Of a solicitor,
demanded the amount in specie. No such
demand was made beforehand, or notice
given to that effect TO the bidder. Whipple
offered current bank bills. This was re-
fused. He offered a specie draft on a bank
in Albany, where the money was to he de-
posted. This was also refused. At the
place where the sale took place, the gold
could not be had, as was well known to all
the parties. The property was Immediately
put up for a resale, and no bid was OBJ
tanned. Without comments, that case was
properly held to be a total disregard of hon
esty and fair dealing, and was decided upon
that ground, and nothing was said by that
court, as to the power of the commissioner,
to interpolate upon the decree a specie
payment. His dishonesty rests upon the fact
that he waited until the sale was made be-
fore he said anything about the specie pay
ment, and then when he demanded it, a
specie draft was rendered him, payable at
the very place he was going to deposit the
money; also the specie was a mere arbitrary
demand, as the party to whom the money
was going had not demanded it or requested
it, but was willing TO take current bills.
Here was a oa that owed the State nearly
three millions of dollars; its inability to
pay wasSconfessed; the value of the road
had been ascertained as nearly as could BE-,
so as to allow the stockholders, who had
expended and lost their subscription, to
take the road, and if possible retrieve their
losses. The minimum was a favor to them;
with them, the State was willing to divide
losses-in their favor it had agreed to lose
two milliOn-but not i'll favor of any one
else. This was a cOmmendable spirit, as
sented to by the commissioners, with a
view not to crush out the hopes of stock
holders, who had already lost largely by
these enterprises. If the State pressed its
entire demand. if was evident that the
stockholders must lose all, and thereby be
come chagrined and soured, when upon the
other hand, if the State met the StOckhOld-
ers in a liberal spirit, and each contributed
to losses, the hopes of the stockholders
would again revive, and these vast enter
prises would he completed by and to the adj
vantage of those who had lost most. This
was the spirit in which the minimum was
iiXed-and if, in any case il was fixed too
high, the mistake was made in the proof
taken, and not in the charity which char
acterized the object sought to be carried out.
The commissioners had been parties all
along to these proceedings, and were well
aware of the spirit of kindness manifested
towards the stockholders, and must have
participated therein; and when the stock
holders declined to buy, from poverty or
other cause, it doubtless seemed to them
great kindness to allow new parties and
strangers to take at the minimum.
| mention these facts to show the light
in which the acts of the commissioners
must be viewed, and the motives which
prompted them in fixing the minimum.
There certainly was no color of unfairness
or oppression. Believing that the minimum
had been fixed by the court with great lib
erality to the stockholders, they doubtless
thought that it would be great kindness to
strangers TO allow them TO come III and reap
a pecuniary profit thereby. The purchasers
do not complain that after they had pur-