Whitely v. Whitely

Pearce, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court No. 2 of Baltimore City overruling exceptions filed by the appellant to the ratification of a sale reported by the trustees, and finally ratifying said sale. The sale was made under a decree passed in a cause wherein the appellant was the sole plaintiff and Benjamin Whiteley, trustee, et al., were defendants. A copy of the decree is embraced in the record, but no copy of the bill appears.

It is, however, inferable from the testimony that the object of the suit was the sale for partition of a parcel of land in Baltimore City owned in common by the original parties to the cause, and it is so stated in the appellant’s brief. There was a mortgage for $18,000.00 held by Gen. Lawrason Biggs, trustee, upon a portion of this property and in order to effect a favorable sale he was made a party to the cause. The decree recites that it was passed “upon consent of the parties,” and at the foot of the decree there is a written assent of the appellants’ then solicitor, Hr.

Wm. S. Bryan, Jr. The decree directs that the property be sold free and clear of the lien of the mortgage, and that the lien should at once attach to the purchase money, and Wm. S. Bryan, Archibald H. Taylor and Lawrason Biggs were appointed trustees to mate said sale. They were expressly authorized “to offer and sell the property as a whole,” and provision was made in case of the purchase of the property by any of the parties entitled to the proceeds, and the confirmation of such purchase, that a distribution account should be made and the purchaser should not be required to pay the dividend awarded to him in such account.

The decree was passed March 10th, 1910, and was amended October 1st, 1910, so as to require the sale to be ⁵⁴⁰ made subject .to tbe operation of certain condemnation proceedings for opening a street through the property, the purchaser to receive the damages which had been awarded to the owners and to pay all benefits assessed on the property. The trustees carefully complied with all the requirements of .the decree, and their advertisement contained a minute description of the property, setting forth certain beneficial restrictions as to the use of certain portions of the property, which had been imposed thereon — and stating definitely, the amount of damages and benefits to be received, and assumed, by the purchaser under the condemnation proceedings mentioned. The report of the trustees filed March 21st, 1911, shows that on November the 5th, 1910, they offered the property at public sale at the Real Estate Exchange Sales Rooms in Baltimore City; that the highest bid then received was thirty thousand dollars, and that being deemed inadequate no sale was then made. The report stated “(that they have since deligently tried to obtain a higher price for the said property, and that they have since obtained a higher offer, and have sold the same at private sale to Emily Stone Whiteley, of Baltimore City, for thirty-seven thousand five hundred dollars, that being the highest offer they could obtain after communicating with all the parties in interest, who have expressed themselves as satisfied that the same should be accepted,” the terms of the sale being those prescribed by the decree, and a deposit of five hundred dollars being made by the purchaser.

On March 27th, 1911, Stockett M. Whiteley, one of the parties in interest, filed sundry exceptions to the ratification of this sale, among which were — that no private sale could be made under the decree; that the property should have been offered in parcels as well as in entirety, and that if so offered he believed a better sale could be made; and that the property was susceptible of partition in kind. As he has not appealed, however, from the order of ratification, his exceptions need not be considered. ⁵⁴¹ On April 21st, 1910, the day the order nisi expired, the apjiellant filed his exceptions, the only ground being that he had that day filed with the trustees his bid for $38,500.00, accompanied by his certified check for $500 on account, and on September 27th, 1911, he filed an additional exception • — on the ground that the reported purchaser, Emily Stone Whiteley is the wife of J ames Gfustavus Whiteley, a party to the cause, who with Benjamin Whiteley, holds an undivided one-third interest in the property as trustees under the will of Elizabeth E. Whiteley., deceased, and that a purchase by Emily Stone Whiteley would in fact be a purchase made by James Gustavus Whiteley of an interest held by him as trustee. Testimony was taken in open Court before Judge Daw-kjlns, in behalf of the exceptant, the only witnesses being Gen. Biggs and Mr. Bryan — two of the trustees and the exceptant himself.

Gen. Biggs was examined at length — he testified that at the public offer there were but two bids, one of $20,000 by Mr. McColgan and one of $30,000 by the appellant, and that the property was then withdrawn; that they then communicated with brokers in the effort to secure purchasers, and that the trustees agreed among themselves that they would try among the interested parties what they would give, informing each of them fully of any bids made by anyone of those parties, and that this course was faithfully pursued; that there was absolute publicity among all the parties in interest, and every bid was communicated to each one. The first bid received after the public offers was on January 17th, 1911, of $30,000 from the appellant (being the same amount bid at the public offer) with an offer to make a deposit of $500. The second bid was on February 14th, 1911, from Emily Stone Whiteley of $32,500 accompanied by her certified cheek for $500.

The third bid was on February 21st from the appellant, of $35,000 made by a letter stating that he understood his previous bid had been raised by one from another person offering $32,500 and that if it ⁵⁴² was a bona fide bid he wished to increase his own bid to $35,000. The fourth bid was February 23rd, 1911, of $31,500 from Emily Stone Whiteley — also accompanied by her certified check for $500 and the last bid, made April 21st, 1911, ^ thirty days after the report of sale was made, was $38,500 from the appellant stating that the $500 check previously sent, might be held as a deposit on that bid. On March 14th, 1911, the appellants counsel, Mr. Bowen, wrote Gen. Biggs that the appellant did not desire to increase his bid, and that he Mr. Bowen therefore suggested the bid of $37,500 be reported to the Court.

Gen. Biggs testified that Mr. Baldwin who represented Stockett M. Whitely, told him his client was satisfied, and Mr. Baldwin stated this was correct. Gen. Biggs also testified that the appellant desired the trustees to report his bid of $30,0000 at the public sale, and said he thought he was entitled to demand this.

The appellant very frankly admitted that he believed the account given by Gen. Biggs in regard to the various bids was correct — but said the language of the report, “that all the parties were satisfied” was not correct as to him. although he admitted that he authorized Mr. Bowen to communicate to Gen. Biggs that he did not desire to increase his . bid, and that he had desired the -trustees to report his bid at the public offering. Lie said “he did not regard that bid of $37,500 as final; that he wished the trustees to see what else they could do, and that when they declared the best they could do he expected to have an opportunity to come in and make a better bid if he felt like it; * * * and that he did not think Mrs. Whiteley’s bid was a proper bid, and thought it could not be used against him; and that he thought her bids were made to run the property up on him and make him pay more than it was worth.” .

Mr. Bryan, as one of the trustees offered himself ready and willing to answer any questions that any one desired to ask in reference to the sale, but there was no response to his offer. ⁵⁴³ Tlie first exception is based solely upon the fact that the exceptant himself the day before the expiration of the order nisi submitted to the trustees a bid of $38,500 being $1,000 a bore that which they had received sixty days previously from the reported purchaser, and this fact, the exceptant contends, requires that the sale reported should be set aside, because it ivas a private, sale, while the decree, provided for a public sale only. It must be borne in mind in considering this exception, not only there has been produced no evidence of fraud, misrepresentation, mistake or surprise, but that the exceptant admits that there was in fact none. He admitted that Hen. .Riggs’ account, given on the stand, of the conduct of