CAMDEN
v.
MAYHEW.
No. 80.
Supreme Court of United States.
Argued November 14, 15, 1888. Decided January 14, 1889. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.*79 Mr. Attorney General (with whom was Mr. J.B. Jackson on the brief) for appellant.
Mr. C.C. Cole and Mr. George Wadsworth for appellee. Mr. W.L. Cole was with them on the brief.
*82 MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.
It is undoubtedly true that Camden's bid of one hundred and seventy-three thousand and fifty dollars was, in legal effect, only an offer to take property at that price; and that the acceptance or rejection of that offer was within the sound equitable discretion of the court, to be exercised with due regard to the special circumstances of the case and to the stability of judicial sales. Milwaukee Railroad Co. v. Soutter, 5 Wall. 662; Williamson v. Dale, 3 Johns. Ch. 290, 292; Kable v. Mitchell, 9 West Va. 492, 509; Core v. Strickler, 24 West Va. 689, 696; Busey v. Hardin, 2 B. Mon. 407, 411; Hay's Appeal, 51 Penn. St. 58, 61; Childress v. Hurt, 2 Swan, 487, 489; Duncan v. Dodd, 2 Paige, 99, 100, 101. It is further contended that an acceptance of that offer could only have been manifested by an order confirming the sale; and as no such order was in fact made, that Camden could not be held *83 liable for a deficiency arising upon a resale of the property. In support of this position his counsel cite 2 Daniell's Chancery Practice and Pleading, *1281, Cooper's 5th Am. ed., in which it is said: "The rule that the Master's report of a purchase must be absolutely confirmed before the contract can be considered as binding, applies equally to cases in which it is sought to compel a purchaser to complete his purchase, as where it is sought to enforce the contract against the vendor. As a preliminary step, therefore, towards enforcing the completion of the contract, it is necessary to have the report confirmed." The present case, however, is not one in which it is sought to compel the purchaser to complete his purchase. It may be that if the court below had determined to hold Camden to his bid for the property, a necessary preliminary step to that end would have been the formal confirmation of the sale, and, perhaps, the tender of a deed, to be followed by an order compelling him to pay the whole amount that he offered. But it was not restricted to that particular mode of securing the rights of the parties for whose benefit the property was sold; for, upon appellant refusing to pay the amount bid, the court, without confirming the sale by a formal order, could have held him to his offer, and ordered a resale in the meantime at his risk, both in respect to the expenses of the resale and any deficiency resulting therefrom. The latter course was approved by Lord Cottenham in Harding v. Harding, 4 Myln. & Cr. 514, and was in accordance with previous decisions. Saunders v. Gray, 4 Myln. & Cr. 515; S.C., Gray v. Gray, 1 Beavan, 199; Tanner v. Radford, 4 Myln. & Cr. 519. So in Daniell's Chancery Pr. & Pl. (vol. 2, *1282): "According, however, to the present practice, a more complete remedy is afforded against the purchaser refusing, without cause, to fulfil his contract; for the plaintiff may obtain an order for the estate to be resold, and for the purchaser to pay as well the expenses arising from the non-completion of the purchase, the application, and the resale, as also any deficiency in price arising upon the second sale."
In view of the terms of the decree of November 17, 1883, there is no ground for the contention that the confirmation of *84 the sale to Camden was necessary in order to fix liability on him for the deficiency arising upon the resale. The decree expressly required that the sale should be made "upon the terms cash in hand on the day of sale;" thus practically making the payment in cash on the day of sale of the sum bid a condition precedent to the right of the purchaser to demand a confirmation of the sale. The commissioners appointed had no authority to accept from the purchaser anything but cash, nor could they postpone payment of the sum offered beyond the day of sale. They conformed in all respects to the terms of the decree, and Camden bid in his own name, without any previous notice to them that he represented others in so bidding, or that he desired or intended to use the debts of particular creditors in making payment in whole or in part. His application to the court, after the report of sale, that he be permitted to complete his purchase by using the alleged "contract" of November, 1883, was properly denied, for several reasons: First, the writing of that date could not become a contract binding upon those signing it until it was executed by all whose names appear in its caption; Second, after the original decree was passed, and before the first sale took place, judgment creditors, for whom the decree made no provision, intervened in the cause, claiming a lien upon the proceeds of any sale that might be made, some of them asserting priority even over the creditors named in the decree; Third, the court was not bound, in deference merely to the wishes of a part of the creditors, to depart from the terms of sale, especially as the creditors whose names appear in the alleged contract of November, 1883, did not, prior to the sale, ask such modification of those terms as would enable them to use their claims in purchasing and paying for the property.
But if there was any ground to insist that a confirmation of the sale was necessary before Camden could be made liable for the deficiency resulting from the resale, all difficulty upon that point was removed by the distinct offer made in open court, to confirm the sale to him, upon his complying with the terms thereof, by paying, in cash, the amount of his bid. This offer having been refused, and the court having been thereby informed *85 that he did not wish to complete the purchase according to the terms of the decree and of his bid, there was no necessity to go through the form of confirming the sale to him, and then, immediately, ordering a resale, at his risk and cost; but, as we have seen, the court was at liberty, without such formal confirmation, to order a resale, holding him responsible for any deficiency resulting therefrom.
The only question that remains to be considered is whether the liability of Camden for the deficiency in the price of the property on the last sale ought to have been ascertained and enforced by an original, independent suit. We are of opinion that the mode adopted in the present case was entirely regular.
Where a purchaser refuses, without cause, to make his bid good, he may be compelled to do so by rule or attachment issuing out of the court under whose decree the sale is had. It was so held in Blossom v. Railroad Co., 1 Wall. 655, 656, where it was said that a purchaser or bidder at a Master's sale in chancery subjects himself quoad hoc to the jurisdiction of the court, and can be compelled to perform his agreement specifically. In Lansdown v. Elderton, 14 Ves. 512, a motion that the person reported to be the best bidder before the Master pay within a given time the purchase money or stand committed, was sustained by Lord Chancellor Eldon, who observed that the purchaser could not be permitted to disobey an order, more than any other person. That case was followed in Brasher v. Van Cortlandt, 2 Johns. Ch. 505, 506, where Chancellor Kent, after observing that the purchaser ought to be compelled to complete the purchase, said: "If no order of this kind could be made, in this case, it would follow that not only the purchaser, but the committee of the lunatic, would be permitted to baffle the court, and sport with its decree... . I have no doubt the court may, in its discretion, do it in every case where the previous conditions of the sale have not given the purchaser an alternative." See also Blossom v. Railroad Co., 3 Wall. 196, 207; Smith v. Arnold, 5 Mason, 414, 420; Requa v. Rea, 2 Paige, 339, 341; Cassamajor v. Strode, 1 Sim. & St. 381; Anderson v. Foulke, 2 Har. & Gill, 346, 362, 373. If, as is *86 clear, the purchaser can be required, by rule or attachment, to pay into court the entire sum bid by him and thus complete his purchase, it is difficult to see why a bidder, sought to be made liable for a deficiency resulting from a resale caused by his refusal to make his bid good, may not be proceeded against in the same suit by rule, or in any other mode devised by the court that will enable him to meet the issue as to his liability. That issue in the present case was tried upon pleadings and proof, and there is no pretence that the appellant had not full opportunity to present his defence before the final order now under review was made.
It is suggested by the learned counsel for the appellant that his client occupies an anomalous position, being required to pay a very large sum, without getting anything in return therefor. It is only necessary to say that, even if the late Chief Justice was mistaken in supposing that the appellant was directly or indirectly interested in the last purchase by Shattuck, his failure to obtain a conveyance of the property was due entirely to his persistent refusal to comply with the terms of his own bid, made with full knowledge of the terms of sale.
Decree affirmed.