Boston & Maine Railroad v. Langdon

It is not the practice in this state for sales in partition proceedings to be confirmed by a formal order of the court. Such sales are treated as valid if no objection is made to-them. Tet, where objection is made to the validity of the sale, the question of its confirmation or whether it should be set aside properly arises. A purchaser at a sale by a commissioner in partition proceedings enters into a valid contract with an officer of the court, which can be enforced unless the court for good cause shown shall set aside the sale. In determining whether a sale of this kind shall be confirmed or set aside, the court will be governed by equitable principles. When the sale has been regularly made in accordance with the order of sale it will not be set aside unless there has been some fraud, accident, or mistake which has affected the transaction. 2 Jones Mort., s. 1637; Jackson v. Warren, 32 Ill. 331.

In this case it appears that the proceedings were regular and the price adequate, and no fraud or misconduct by any person in relation to the sale is proved or alleged. Neither does it appear that there was any accident or mistake connected with the matter which would warrant the setting aside of the sale. The commissioner, being requested by two of the tenants in common to goon with the sale, acted properly in denying the defendants’ request to delay it and in proceeding with the sale. The fact that Mrs. Langdon was unable to get counsel to delay the sale does not affect the matter, as it does not appear that counsel could have aided her, or that there was any good reason why the sale should have been delayed. If she was under a misapprehension in thinking that her purchase of the original petitioners’ interest in the partition proceedings entitled her to control the same, it was not due to the misconduct or fraud of any one, and she had abundant opportunity to iuform herself if she had exercised due diligence. The sale cannot be set aside for any of these reasons.

But the defendants especially urge, in support of their position against the approval of this sale, that Mrs. Langdon, since the sale and before the hearing upon the motion for confirmation, purchased the interests of her cotenants and was then the sole owner of the property. But the sale should not be set aside and confirmation refused because the parties to the partition proceedings have, since the time of the sale and before the confirmation, adjusted their differences in regard to the property. It is apparent that when the parties to partition proceedings agree among themselves, at any time before the decree of partition, to discontinue the proceedings, it is their right so to do. And it is equally apparent that this would be so in the case of a judicial sale up to the time of the purchase of the property by a third person. After that, the purchaser has the right to have the sale confirmed, and to acquire the property under his contract, unless some reason based on equitable principles is shown why the sale should bo set aside. In a case like this, when the sale has been regular, the price adequate, and no fraud or misconduct shown on the part of the purchaser or any one else, to allow the cotenants by a simple agreement among themselves to set aside the sale would be to give them an undue advantage and one which is denied to the purchaser. It would enable them to play fast and loose with the transaction, to enforce it or set it aside according as it should appear after the sale and upon further consideration of the matter, or in view of the changed value of the property, it ivas for their interest to do. To give them such a power would not only be most inequitable, but would put in their hands an instrument of fraud which the law never contemplated.

Exception overruled.

Parsons, J., did not sit:- the others concurred.