Opinion
13856
May 28, 1934.
Before OXNER, J., Greenville, October, 1933. Affirmed.
Action by the Saluda Land Lumber Company against the Saluda Crushed Stone Company and others to foreclose a mortgage, in which F.G. Hamblen and C.M. Wing were appointed receivers. At the sale of the mortgaged property pursuant to decree of the trial Court, E.U. Ragland was a bidder. From a decree setting aside the sale, rejecting all bids, and ordering a resale, E.U. Ragland appeals.
The decree of Judge Oxner, directed to be reported, follows:
A petition was filed in the main cause herein asking that petitioner's bid for the property sold in the main cause be declared to be the only legal and binding one and that a deed be executed to him to the property. The petition was subsequently amended and returns thereto were made by the receivers and by C.M. Wing individually, in which it was prayed that the bid of C.M. Wing be declared to be the valid bid and that the sale be confirmed to him individually. The issues thus raised were heard by me on affidavits filed by the parties interested. Upon the issues, I find the facts are as follows:
On October 18, 1933, a decree was signed by his Honor, C.J. Ramage, presiding Judge, confirming the Master's report and ordering judgment in favor of the plaintiff against the defendant, Saluda Crushed Stone Company, for the aggregate sum of $28,405.78 and ordering a foreclosure and sale of the mortgaged property referred to in the complaint, said sale to be held on sales day in November, 1933, or on some subsequent sales day thereafter, and requiring the successful bidder, other than the mortgagee, upon the acceptance of his bid, to deposit with the receivers a certified check or cash in the sum of $500.00 as evidence of his good faith in bidding. Under said decree the property was duly advertised by the receivers and at the public sale held in the Court house on sales day in November, the plaintiff bid the sum of $500.00 for the property advertised and also the property described at the sale, and no other person bid at said sale.
On December 6, 1933, the last day fixed for bidding upon the property under the terms of the Act of 1933, bids were submitted, and out of this bidding the controversy herein arises. Mr. Hamblen, one of the receivers, was out of the city, and Mr. Blythe, one of the attorneys for the plaintiff and the receivers, acted for him under the authority conferred by him. At 11:50 a. m., Mr. Wing, the other receiver, Mr. Love his attorney, and Mr. Blythe met in the office of the latter in the Masonic Temple, for the purpose of receiving bids; the time and place of such meeting having been fixed by previous agreement. On the same day and shortly before 12 o'clock, Mr. Cook, president of Saluda Crushed Stone Company, Mr. Ragland, and Mr. Aiken went to the office of Saluda Land Lumber Company, of which Mr. Hamblen is general manager, and there petitioner filed with Mr. Hamblen's secretary a bid of $5,500.00 for the property and with the filing a cashier's check on Wachovia Bank Trust Company for the sum of $550.00. Immediately upon receipt of this written bid the secretary phoned Mr. Blythe at his office, and thereupon, upon announcement of that fact being made by Mr. Blythe at that meeting, Mr. Love, as attorney for Mr. Wing, bid for the property $1,000.00 more than the Ragland bid and delivered to Mr. Blythe a check for $650.00 payable to the receivers and Mr. Blythe thereupon announced that this bid was accepted by the receivers. I find that this bid was made and accepted before 12 o'clock on December 6, 1933, and was the last and highest bid made for the property.
The petitioner and Mr. Wing both asked that their bids be declared to be the only valid bid and each asked the Court to confirm the sale as to him. I find under the authorities cited that in South Carolina Mr. Wing had the right to become a purchaser at the receivers' sale, even though he himself was receiver; it being made affirmatively to appear that he has an interest in the proceeds of the sale, judgment having been awarded in his favor against Saluda Crushed Stone Company in this action. And I further find that Mr. Wing's bid was filed and accepted before 12 o'clock noon on December 6th and was the highest and last bid.
While I am satisfied that the sale was conducted by the receivers in good faith and there was no attempt on their part to preclude any one from bidding, it appears from the affidavits that neither of the receivers were at the place of business usually occupied by Mr. Hamblen and Mr. Wing had no office in the City of Greenville but resided outside the city. If the meeting had been held at Mr. Hamblen's office and if Mr. Ragland had presented his bid and another bid had been made, it may still have been possible for Mr. Ragland to have increased his bid, and it may be that, had Mr. Ragland seen other bidders present or other persons present who were likely to bid, that fact would have induced him to increase his bid. However this may be, I feel that the proper course to be pursued in this case, under the unusual circumstances existing, is for the Court to set aside in toto all proceedings with reference to the sale first held and to order a readvertisement and resale of the property. This course will result in all parties interested having equal opportunity under the law to bid for the property and will be fair and just to all parties concerned, and appears to the Court to be the just and equitable method of disposing of this question, and could not prejudice the rights of any one. Upon thoughtful consideration and after full argument, it is therefore ordered, adjudged, and decreed that the sale made pursuant to the order of Judge Ramage be, and the same is hereby, set aside, and all bids made pursuant to said decree are declared to be of no effect.
Further ordered and decreed that all of the property, both real and personal, which was offered for sale on sales day in November, 1933, be sold on sales day in February, 1934, or on some convenient sales day thereafter, after due advertisement as required by law, that the terms of the sale be for cash, the purchaser to pay for papers and stamps, and that the successful bidder, other than the mortgagee, do upon the acceptance of his bid deposit with the receivers a certified check or cash in the sum of $500.00 as evidence of good faith in the bidding, and subject to any resale of said property under order of this Court, and, in the event said purchaser fails to comply with the terms of said sale, the said receivers shall forthwith resell said property, after due advertisement, and continue to sell said property on any subsequent sales day thereafter until a purchaser who shall comply with the terms of said sale shall be obtained; all such sales to be made at the risk of the former purchaser, and at said sale all persons, including the parties to this action, shall have the right to bid without regard to whether or not such person has or has not been heretofore a bidder at the sale.
Further ordered and decreed that in all other respects the sale of the property shall be in conformity with the order of Judge Ramage and the property to be sold shall be that described in said decree together with the other property included in the former sale, as to which announcement was made at the previous sale.
Messrs. L.D. Lide, Ben W. Parham and W.G. Sirrine, for appellant, cite: Cashiers' check: 77 So., 715; 201 Ala., 189; 242 S.W. 442; 111 Tex., 561; 70 So., 754; 195 Ala., 552. Authority of receiver: 23 R.C.L., 77.
Messrs. Blythe Bonham, for respondents, Saluda Land Lumber Co., and for the Receivers, and Mauldin Love, for respondents, C.M. Wing and for the Receivers, cite: Right to bid at sale: 2 Bail., 480; 31 S.C. 183; 14 S.C. 312; 7 S.C. 185. Confirmation of sale: 117 S.C. 175; 35 S.C. 409; 154 S.C. 407.
May 28, 1934. The opinion of the Court was delivered by
The decree in this cause of his Honor, Circuit Judge Oxner, sufficiently states the facts, and we agree with the conclusions reached therein.
We wish to add two observations. The first is that the sale made, or sought to be made, by the receivers, was subject to the confirmation of the Court, and, since it appears that the price offered by the highest bidder was entirely inadequate, the Circuit Judge may have well refused to have confirmed the bid, even if there had been no misunderstanding on the part of the respective bidders as to the place of filing the bids. The new sale, ordered by the Judge, confirms the fact that the bids made at the first sale were entirely too low, for at the second sale, ordered by Judge Oxner, the property brought $25,000.00, about four times as much as the bids obtained at the first sale.
We make the suggestion that, when a sale of real estate is made by one who is not a duly qualified public official, with a regularly established office, it will be well for the order directing the sale, and the advertisement thereof, to state definitely the place where the bids, under the Act of May 16, 1933 (38 St. at Large, p. 511), regulating "Judicial Sales of Real Estate," may be received. This course we think will aid much in preventing confusion in the bidding at such sales.
The decree appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM, and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.