The herald and mail. [volume] (Columbia, Tenn.) 1873-188?, 1874-01-30
CHANCERY DrUIsION-No. 8.

~ d. BeRdOman, ct als., e. 4. f. Johnston, G
ale.
In this cause tract of laud was sold
by the Clerk and Master under the or
d-rs of the Court, at which sale 3. A.
Nichols, became the purchaser, at the
sum of $500, and executed his n0tes
with security for the same. The land
was sold as the property of A. f. john
Ston, to whom IL lad been devised by
his father, VIM. j. Johnston, by will
| bearing date Nov. 25Gh, 1916. The re-
port OF the Clerk and Master Of said sal =
to Nichols, awaits confirmation, and IN
this attitude of the case Jno. b. Bunch,
one of the credit ors of said A. John
stOn, flies his petition to set aside h =.
sale and rec open the biddipgs, on the
ground that the Tract OF land was wor h
much more than it brOushJ at the sale
and alleging that IL would have sold Tor
better price had il not been for an ap-
prehensinn .'enerally pre- aIliug in ~,
neighbOr God that the title in A. T.
Johnston unu the wi OF his f,ther
WAS not good one, that, is absolute and
in fe4. Then the petition tenders the
notes of X. F. DOwell with j. l. Will
liams as ~ cnrity 1.-TWO in number) tor
the sum of 81 800. being an advance of
$1,000 upon the bid OF Nichols, and asks
that the land be re-sold, taking the
bid of Dowell as the starting point or
first bid. The answer denies there WAS
any rumor in the neigh uorhOod calculus
ted to injure the sale, by bringing the
title to the land in question, or by cast
ing any doubt or suspicion upon it. 1t
insists that Dowell was present on day of
sale, was satisfied with the title, and
bid against the respondent. Responds
ent insists that the land brought full
and fair price, and that he should not
be disturbed in his purchase. and tn It
Q Ea L. 1.
irmed. In glancing at the decisions of
our Supreme Court, there seems to be
An apparent if not some real dis
crepancy on the subject of opening bid
dings at Masters sale. From an ex
animation OF the authorities, however, |
think the following rules may be safely
deduced:
1st- Before confirmation, the biddings
will be opened on slight grounds, and 4
mere advance on the price has been held
sufficient. Coffin VS.. Caruth, Cold.
1874
2nd-After confirmation. no advance
on the price, merely without more. is
sufficient. There must be some other
circumstance, such as fraud, accident,
mistake, misconduct of some party in
terested, the existence OF n trust reld-
ton or act of God, by which the object
of the sale was defeated or the sale ma
teriallv prejudiced. Moore VS.. Watson.
Cold. "a; Houston vs. Aycock, 5 Sneed,
4O6.)
3rd-The reason of this distinction be-
tween case arising before and one aris~
ing alter confirmation, is Obvious. Be-
tore confirmation the sale is incomplete.
The bid amounts to nothing more than
proposition to buy made to the Court,
which is only accepted by the Court, 10y
the decree OF confirmation. During the
period elapsing between the day or sale
and the decree OF confirmation, the
property remains at the risk of the orig
inal owner, and not at the risk of the
buyer as held by our Supreme Court. |
armstrong VS.. Mcclure, Heisk, r so. ) |
Another incident is that between said |
periods the owner, if it be real estate, is |
entitled to the rents and not the pur- |
chaser. (Armstrong VS.. Mcclure, |
Heisk. S0.)
But after and by confirmation the |
contract of sale is completed, and stands
rs any other sale, and can only be im-
peached or set aside for such causes or
as would be deemed sufficient
to set aside or rescind any other con-
tract of sale. Is Yerg. 240; 5 Sneed, 400
4th-By the En-lish rule, Il mere adj
vance on the price, before confirmation.
IS held sufficient to open the biddIng4
In the case of Houston VS. A;cock 5 III |
Sneed, it was held that meIhiug more
Was required in Tennessee than Inns
3 L in he case referred TO in LIST Cnlh.
1874, OF Coffin VS.. Caruth, the Engli,
.ule was adopted, TO Ire applied in the
discretion of the Chancellor.
The true rule then which should gov.
,rn in cases where there has been no
AZ gathered from the cases
= this: That while it is not mater o.
course To open the holdings. upon y
mere advance or the Off-r of "A larger
'uIn, Vet it is made the duty If the
Court t" see that its sales are fairly and
properly conducted, and under such
circumstances, rs To insure the bpsI |
price tor The prnparty sold
What precise circums' ances. calcula~
ed to diminish the price of the proper
V, w 'uld justify "A Chancellor in setting
side a sale and opening the biddin -
must be left in great degree to his own
ound discretion, upon an examination
" all the surroundings. johnson VS.
luarleS, Cold. els; Owen VS.. Owen, 5
Hum. 352.)
With these principles before us, let Us
zee what were the circumsr ances con
lected with this sale. There is no cOm-
)laint that he proceedings under which
he Master acted were not all regular;
10 complaint that the sale was not con
Iucted fairly, upon the proper day, at
he proper place and in proper manner.
NO complaint That the terms were not
III complied with properly by the pur-
haser. But the ground of c lmplainr is
hat persons were deferred from bids
ling by an apprehension that the pur
haser would not get perfect title. or
hat there would be some question or
lou ut as to the title. Whet her this .p
'rehension was well founded or not.
an make no difference. Did it ha e
he effect of lettering persons from buy
ny? Did it have material influence
N the sale7 Did the land sell for less
N account of this belief Several afti |
avits have been taken of persons living
n adjoining lands and in the immedi
te neighhOrhoOd of this tract, and these
fidavits state that such an impress on
vas broad and had its effect, and that
ut for such belief, the property would !
ave sold for several hundred dollars !
lOre. Affidavits were also taken by
he purchaser, stating il brief, that the
roperty sold for its full value. But
hese statements are overthrOwn by the
tubborn fact of the advance bid of $780,
now offered.
Looking to the phraseology of the
yill, bv which the land was devised to I
!. +. Johnston, it is not at all remarka-
lie that those not conversant with the
1les by which wills are construed and
should have entertain ed '
sriOus doubts of the validity OF the title.
nder the circumstances ofthis case, / s
mink the biddings should be opened Z
nd so decree, FLEMING, o
Chancellor. :