
    *Roberts v. Roberts.
    January Term, 1857,
    Richmond.
    (Absent, Lee, J.)'
    1. Judicial Sales — Inclement Weather — Few Bidders— Sale Set Aside. — A sale of a tract of land made by a commissioner under a decree of the Chancery court, on a day so inclement that persons intending to be present and to bid for a part of the land, are deterred from attending, and when there was but one bidder present, who lived at the place, will be set aside, without weighing the evidence, which is conflicting, as to the sufficiency of the price at which it was sold.
    2. Same — Objections—Setting Aside Sale-LDiscretion of Court. — According to the practice in Virginia, upon objection to a sale of land made by a commissioner, it is not necessary to ask that the bid-dings may be opened by the offer of a substantial advance upon the price reported. But the court will consider the objections to the sale, and confirm or set It aside as the merits of the case may require.
    This was a bill filed in the Circuit court of Nelson county by John T. Roberts in his own right and as executor of John M. Roberts, against the other heirs of John M. Roberts,, for the sale of a tract of land which was undisposed of by the will of his testator. The court made a decree appointing the plaintiff a commissioner to sell the land, which consisted of a tract of mountain land of about one thousand acres. The commissioner subsequently reported that he had offered the land for sale on the 3d day o.f December 1852, when it was purchased by Ann T. Roberts at the price of two dollars and sixty-two and a half cents per acre, and that she had complied with the terms of sale.
    On the return of the report of the commissioner some of the heirs excepted to it, and objected to the confirmation of the sale, on the ground that the day *of sale was very inclement; it raining all day, so that there were no persons present except the - family living on the place, and except the commissioner, the crier and one other person; and that consequently the price was far below its real value.
    It appeared from the evidence that it’ rained all day; and that there were no persons present except the family living on the place, the crier and one man who had gone there the evening before; and there was no bidder but Ann T. Roberts, who was one of the heirs. Several witnesses said that the dajT was so bad as to deter persons from going to the sale; and one who was authorized to buy some thirty-five acres of the land at seven dollars, was prevented by the weather from attending.
    As to the value of the land the witnesses differed very much in opinion. Some thought the land was worth from three to ■ four dollars per acre; whilst a number thought that it was sold for its full .value, and some for even more than it was worth.
    When the case came on to be heard upon the exceptions to the report, they were sustained by the court; and the sale was set aside, and another sale by other commissioners was directed. And from this decree Ann T. Roberts applied to this court for an appeal, which was allowed.
    Patton, for the appellant.
    Robinson, for the appellee.
    
      
       Judicial Sales — Setting Aside Sale — Discretion of Court. — For the proposition that, setting aside a judicial sale is within the discretion of the court, the principal case is cited in Magann v. Segal, 92 Fed. Rep. 263, where it is held that where the failure to bid was due to accident such as, together with the inadequacy of price realized, justified the court, in refusing to confirm the sale and ordering a new one.
      It Is also held in Kabell v. Mitchell, 9 W. Va. 492, citing the principal case, .that the court may, in the exercise of a sound discretion, either affirm, or set aside, the sale, where from the facts, evidence, and circumstances before it, it appears clearly that the sale was made at a greatly inadequate price, or, it may set aside the sale upon any evidence or facts before it, which clearly show that the land sold at a greatly inadequate price.
      Same — Cloud on Title. — For the proposition that a court of equity will refuse to make a sale of land where there is a cloud on title (until such cloud is removed), the principal case is cited in Parsons v. Snider, 42 W. Va. 521, 26 S. E. Rep. 287. See also, Rossett v. Fisher, 11 Gratt. 492; Curry v. Hill, 18 W. Va. 370; Lallance v. Fisher, 29 W. Va. 512, 2 S. E. Rep. 775.
      The principal case is distinguished in Graeme v. Cullen, 23 Gratt. 287.
      Same — Objections in Lower Court. — In Teel v. Yancey, 23 Gratt. 698, it is said, that.it is nowhere proved, or even charged that the conduct .of the commissioner was not perfectly fair and impartial nor was it asked in the court below that the commissioner be substituted by another, nor was the sale objected to on account of the commissioner being a party to the suit. The objection is made for the first time in the appellate court, and comes too late, even if it could have availed the party in the court below. See Goddin v. Vaughn, 14 Gratt. 102; Roberts v. Roberts, 13 Gratt. 639.
      
      See generally, on this whole subject, monographic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
   SAMUEBS, J.

It is the right of every party concerned in interest in property, -when about to be sold at public auction, to have it offered for sale under such circumstances as afford an opportunity for fair competition amongst all who may be disposed to buy. Doubts about the identity or title of the subject to be sold may prevent prudent men from offering to buy, *and are therefore enough to justify any one charged with the duty of making a sale, in postponing the sale until such doubts may be removed and the danger of sacrifice be avoided. See Rossett v. Risher, 11 Gratt. 492; Goare v. Beuhring, 6 Leigh 585; 1 Lom. Dig. 425 top, 323 marg. Without going into an enumeration of the many causes for which public sales have been set aside, yet we see that many of them are founded on the principle that fair competition has been prevented, and sacrifice may have been incurred to the prejudice of those interested. This principle rules in cases of sales by auctioneers, executors, administrators, trustees, commissioners, and all others having authority to sell. 2 Rob. Prac. 65, old edition. Although the irregular action of the person making the sale may not always avoid it, still wherever the sale itself is allowed to stand, the delinquent in duty must make compensation to the party injured.

In the case before us a sale of land was made by a commissioner acting under a decree of the Circuit court of Nelson county. It was the right of the appellees as well as of the appellant, the parties interested, to have the benefit of fair competition. Yet the sale was made on the 3d of December 1853, a day which was so inclement because of rain, that several persons who wished to attend were prevented by the weather from doing so. There is a conflict of evidence on the question, Whether the inclemency of the day was such as ought to prevent any one who might wish to do so from attending? There is no conflict however as to the fact that some persons did stay" away who had intended to be there, some of whom wished to buy the land or a part of it. There is moreover no conflict of evidence as to the fact that the appellant was the sole bidder; that the commissioner, the crier and one other, were the only persons drawn to the place in expectation ':iof a sale; that the appellant who became the buyer, and her brother lived at the place. The case before us differs from Fairfax v. Muse’s ex’ors, 4 Munf. 124, in this, that in that case there were five bidders present, including the plaintiff’s agent and the defendant: in our case but one bidder was present. In our case, besides the commissioners and crier, there was but one other person in attendance, because of the expected sale, and that other had no intention to buy. In the case in 4th Munford, the report states that a “considerable number” were there. In our case persons who wished to attend were prevented by the weather from doing so. In the case in 4th Munford it is not shown that any one staid away because of the cloudy and rainy day, who desired to be at the place of sale. The marked difference in the facts of the cases in my judgment requires a difference in their decision. Seeing that the duty of the commissioner was plainly violated; that the sale reported in effect was one by private contract, the court should not go into an enquiry upon the conflicting evidence whether the price was a fair one.

It was said in the argument here that if the sale under consideration could be set aside at all, that it could only be done by opening the biddings by the offer of a substantial advance upon the price reported; that this practice of the English chancery courts should be followed here in cases like this; and that the exceptions to the commissioner’s report in this case for this reason should be disregarded. This objection I think is not well taken. The commissioner is the officer of the court, and acts under its supervision. His errors, when brought to the notice of the court, or appearing on the face of his proceedings, may be corrected. Such has hitherto been the practice in Virginia without question as to its propriety; its convenience and ^'justice are manifest, and it should not be disturbed. In Eairfax v. Muse’s ex’ors, above cited, the Chancery court, in a summary way, revised the action of its commissioners, and confirmed it; and this court upon appeal affirmed the decision of the Chancery court.

I am of opinion to affirm the decree.

The other judges concurred in the opinion of Samuels, J.

Decree affirmed.  