Capital journal. (Salem, Or.) 1893-1895, 1895-07-22
0. P. SALE AFFIRMED.
Judge FullertOn's Sale Must
Stand.
JUSTICE MOORE'S FULL OPINION.
A Clear-Cut Decision by the State
Supreme Court.

4
opinion is by Justice F. A. Moore, and
is given in foil:
The respondents contend that the
defendant companies having admitted
in their answers that they were insOlv-
ent and that the value Of their prop
erty and franchises was insufficient 10
meet the payment of the bonds and
| overdue Interest coupons, secured by
the mortgage, and no decree having
been rendered against them for any de.
| ficiency after the sale of their property,
aud not having made any objections to
the confirmation Of the aale they have
no appealable interest and are estOpped
| by the order Of confirmation. That
none of the ether appellants ever inter
vened in the court below or became
parties to the record; that Sanford
Bennett. E. G.. McShane, and Bro
naugb, Macarthur, Fenton d Bronaugh
are the only persons or firms who filed
| any objections to the confirmation oi
sale within the time presorib ed by law
that the appellants have no unity of
interest, and that Bronaugh, Nc.
! Arthur, Fenton d. Bronsugh have not
taken cross appeal. Without consid.
| ering the Tespondents' objections, but
assuming that the appellants are par
ties to the record and properly before
| the court, we will examine the case
upon the merits as presented by the
| records,
The appellants contend that the
The amount bid for the property and
| franchises was so grossly dispropor-
| tionate to its value as to render the
order of confirmation an abuse of dis
cretion, and while not expecting the
| court 10 set the sale aside on account of
| inadequacy Of the price alone, yet they
insist that soms excuse should be found
for avoiding the effect of the bid in
| such cases, and suggest as an additional
reason, therefor that the court had no
Jurisdiction or aut hoIity, at a subse
| quent term, to modify or vary the
| provisions Of the original decree; while
the respondents admitting the legal
proposition contended for, insist that
the subsequent orders of the court did
not modify or vary the original
decree but only prescribed the terms OF
| its enforcement and that the right to
do 30 Is inherent In the court as was
specially reserved In the decree. As.
suming for the sake Of the argument
that the amount bid was inadequate.
| We will examine the original decree
and the order of the court Of October
20, 1894, wit b references to the right OF
a purchaser to tender In part payment
| of the purchase price receivers certifi
Gates as cash, this being the particular
modification Of which the appellants
complain.
The original decree, after providing
that the mOrtgaged property should be
sold as an entirety for cash. and with.
| out appraisement or right Of redemp-
tion, further directs that $50 much OF
the purchase price as Is not required to
be paid In cash may be paid In receiv'
er's certificates, aud In bonds, over due
interest coupon bonds, at such rate and
per centage As the holder would be
entitled 10 receive In respect Of such
bonds and coupons out Of the purchase
money and proceeds OF sale, as the
same may be ascertained. III any
question should arise as TO the sale and
age or as 10 the proportion to be paid In
cash aud the proportion that may be
paid In such bonds and coupons,
application" (fOr that purpose) "mAy
be made tO the court from time to
| time" The sentence last quoted
makes ne provision for asceTtaining
what portion OF ths purchase price
may be paid In receivers certificates,
but the preceding sentence, having
provided that 80 much Of II Is not
| required 10 be paid In cash may be paid
In certificates, bonds aud coupons,
places the certificates Ia the same class
with the other evidence Of indebt-
edness aud limits the right Of bidder
20 tender them la payment OF that
part OF the purchase price not required
by the court 10 be paid IN cash. II also
required bidder 10 deposit the sum of
u, 900 A. an earnest Of his good faith
aud ability 10 comply with the terms
~ his OlIef to purchase, but II did nOi
presoribs what sum should be paid Ia
cash, aud hence, In the absence Of such
a provision the whole purchase price
could be paid only Ia that nlannsE II
the sails had been made under the
original decree, without any applloa'
tion 10 the court 10 prescribe what
amount 0f the purchase pTlee should
he paid Ia oash, eau u be successfully
ooatended that the purchaser could
have rendered elihef Feoelysr's osnln'
oates, bonds ~ intefsst aonpons in
pay ment of any part OF llY Had the
court on TBS application oi lhe pat
ties, nked the AliOpnl ~ tbs puTohaae
filtet Nera Aheh tNs Nh"iNl Nhith VS.
10 have bee0 paid ln cash, then the
osTllnosias would have heen feoelyab
st lhelF face galue ln liquidation NJ that
paFi Of u noi 40 payable, foE the decree
made the pT9Ylslon fof FsoslYing the
honns and coupons only ~ suph Tsis
aud percentage ~ tho holders ihsIe0i
mleilt hs eRlillpd 40 0ut ~ lhs pur
ehAss pllee, aud mAde no Isielsncs %
lhe esglinostss.
Ths order 0f oel0heF a0, 1874, pgo
yldsd lhsi ssld ssls shauld H. mads
l0f cash NJ III y gold 00ln, sud h Nas
eanisnded Ni lhs sIgpmfpi that sinoe
the l4lelfrrs npliuoaies Hsgs nni
psysble w like o0ip ihey enula n0i hs
lfctiffd ln pay nleni ~ cay psli ~ ihs
pplahanf psleSl Rnd heAef ihls nllfl