Fine v. Beck

Adkins, J., delivered the opinion of the Court. On November 18th, 1920, appellant purchased from appellees at trustees’ sale certain property on Pennsylvania avenue, part of Which was then occupied by Jones & Lamb, for $22,100.00. On December 17th, 1920, before the sale was ratified, two of the parties interested in the proceeds of sale filed exceptions to the sale, and while said exceptions were pending, to wit, on January 7th, 1921, the property was damaged 'by fire. On January 12th, 1921, appellant filed a petition for an abatement of the purchase money to the amount of damage caused by the fire.

On April 18th, 1921, the exceptions were overruled and the sale ratified, “without prejudice to the right of said B'enjamin Fine to proceed with his petition filed on January 12, 1921, for an abatement or his right to such an abatement of the purchase price to the extent of the damage to said property by fire on or about January 7, 1921.” A hearing was had on this petition and testimony taken. It appears from the testimony that, at the time of the sale, the lease of Jones & Lamb was .about to expire, and they were desirous of having it extended for two months to give them time to move their movable fixtures. They took this matter up- with the trustees, and one of the trustees in turn ³¹⁹ took it up with appellant. There is some unimportant difference between the witnesses as to just what was said by appellant and Mr. Benzinger, one of the trustees, in their conversation in regard to extending the lease, but we think it is reasonably clear that appellant, acting under the advice of counsel, knew that he could not act alone in this matter pending the ratification of sale, and that he merely joined with the trustees in agreeing to the extension.

This view is strengthened by letters written by the lessees to Mr. Ben-zinger and Mr. Fine on the same day, confirming the arrangement arrived at for the extension. It is to be noted that, in the letter to Mr. Benzinger, he is asked whether “you desire the Jones & Lamb Company to pay the December and January rent to you and Mr. Beck as trastees, or whether this rent should be paid to the purchaser, Mr. Fine?” It does not appear that Mr. Benzinger made any reply to this inquiry, and the testimony of Fine, the appellant, that he never received any rent, is not contradicted. It would seem from this that the lessees looked to the trastees in the matter and not to' appellant. It further appears from the testimony that appellant-placed “for rent” signs on the premises on or about the day of the sale, but there is no evidence that he did this with the consent of the appellees.

Appellant says he put the signs up to try it out and see who would want the property when it came into his possession; that when inquiries were made he told inquirers that he was not then in a position to deal with the property, but he would take it up with them if the sale shoiild be ratified; that he did -not show any one over the premises. It is manifest he could not have made any binding contract- in reference to the property pending the ratification of sale, and it cannot, therefore, he held that the putting up of these signs constituted a taking of possession. Ko keys were ever turned over to him, nor does there appear to have been any understanding between him and the ³²⁰ trustees that he was to have control of the property and to he responsible for it pending the ratification of sale. Of course, the failure to turn over the