Clarke courier. [volume] (Berryville, Va.) 1869-1997, 1901-02-13
THE BOOM CASE DECISION.
Continued From Page II

will restrain the trustee until these
impedimeuts to fair sale have by its
aid been removed as far as il is prac-
ticable to do so. This rule has been
affirmed in numerous cases decided
by this court" ,
"And so, If the aid of the court is
invoked ia the first instance TO en-
force encumbrances on lands, de-
cree for sale without first ascertain
ing, settling and determining what
encumbrauces are chargeable on the
property. the amounts thereof respec-
lively, aud the order in which they
are SO chargeacle, would be prema-
ture and erroneous. Such has been
the uniform course of decision by
this court, commencing at an early
period. Many of the adjudg9d cases
are referred to in the opinion in HOr
ton 4 ais. '. Bond, 2S Graft, SIS,
S22."
1.-The principle on which the deci
sious in both classes of the cases are
founded is, that sale without first
removing "A cloud from the title aud
adjusting and settling rights in dis
pute, and without previously ascer-
taiuing and determining the liens aud
encumbrances, the amounts, anu prl
critics, tends to Ii sacrifice of the
property-as to creditors, by discour-
aging them from bidding. when they
probably would have bid, for the
protection of their own interests, if
the rights of all parties had been pre-
viously ascertained and fixed with
reasonable certainty"
Bvt the reasoning, it will be per
ceived, rest upon the assumption that
there are liens TO be ascertained and
priorities to be determined.
That a court of equity will not as
sumo the existence of liens, when
there is nothing in the record to sug-
gest them, plainly appears from the
case of Muller v. Stone, 81 Va, at
page 834. In that case there were
certain liens resting upon the prop
erty, whose amounts and priorities
were stated In the answer. There was
no dispute as to them, and no evi.
dence of the existence of other liens,
but il was insisted that il was error
TO decree sale without having first
directed an account. "What reason
was there" this court asks, "for AN
account of liens? Or what reason
was there for experimenting a sacri
fee of the property if sold without
an account being taken? None what
ever. There is not even a suggestion
in the record that there are any other
liens on the land than those mention
ed in the answers, aud as TO those, We
repeat, there is no conflict or dispute -
1t is a maximum in the admins
tration of justice, that what does not
appear is as though it did not exist.
No lien other than that for the pur-
chase money is even limited at in this
record. We are bound to presume
that none other existed. As we have
seen. the stockholders were not par
ties when the decree of sale was en-
tered; nor when the sale was con
tirmed; nor was it necessary that they
should be. The Berryville Land and
improvement Company was a party,
and that was sufficient. See Bristol
Iron 4 Steel Co. =. Thomas, 90 Va,
396; Martin v. South Salem Land
Co., "a Va, 30.
1t is assigned as error that the de
cree allows the sum of $4,000 that
was paid to A. Moore, Jr., president
and general manager of the company.
as salary for the year ending with
October, 1891.
Section 1919 of the Code provides:
"Tnere shall be no compensation for
services rendered by the president or
any director, unless it be allowed by
the stockholders"
The salary of A. Moore, Jr., as
president and general manager was
fixed by the Board of Directors at ii
meeting held November 8, 1890,
and at a general meeting of the
stockholders the report of the treas
urer was presented, considered, and
approved, in which the payment
made on account of salaries and the
sums still due for salaries unpaid