
    Oaks v. Oaks, et al.
    (Decided November 13, 1923.)
    Appeal from Logan Circuit Court.
    Partition — Bidder Not Liable for Damages Before Confirmation.— If sale in partition is not confirmed, tbe bid is not accepted and tlie bidder is not bound, and no cause of action has arisen in favor of those owning or .claiming an interest in the land and against the bidder.
    S. R. CREWDSON and O. M. SMITH for appellant.
    S. Y. TRIMBLE for appellees.
   Opinion of the Court by

Chief Justice Sampson

Affirming.

Appellant, L. M. Oaks, and B. B. Oaks owned jointly a tract of 109% acres of land in Logan county in 1918. In that year B. B. Oaks brought an action against L. M. Oaks for a sale of the joint property and a division of the proceeds. A sale was- adjudged. Later B. B. Oaks died intestate leaving the appellees, K. O. Oaks, et al., as his only heirs. At a sale of the land one of the appellees bid $6,630.00 for it and the property was knocked off to her. She did not execute the sale bonds, and a short time thereafter entered into an arrangement with appellant whereby appellant, who- had bid $5,600.00 for the land at the sale, should take the same at his- bid; thereupon the- master commissioner reported the- sale to appellant, L. M. Oaks, instead of to the other bidder. This report of sale was confirmed without objection or exception from appellant and the land conveyed to him.

This action was commenced by appellant in the Logan circuit court to recover of the heirs of B. B. Oaks the sum of $515.00, being -one-half of the difference between the price which appellant bid, $5,600.00, and the price bid by one of appellees, $6,630.00, it being averred that appellant had lost $515.00 on account of the failure of appellees to execute the sale bonds- and to take the property at their bid. Appellant seeks to invoke the rule approved in Shirley v. Shoemaker, 23 R. 452, where it was held that where the purchaser at a judicial sale failed to execute the required bond, and the sale was confirmed by the court and resale ordered, at which he again became the purchaser at a price less than at the first sale, he should be compelled to pay the difference and the costs of resale. See also Brand v. Pryor, 131 Ky. 276. It is not averred, however, that the master commissioner reported the.sale to the appellees, or either of them, at $6,630.00, but the substance and effect of the appellant’s pleading, as we read it, is that the master commissioner, at the instance of appellant as well as of appellees, reported the sale of the land to appellant at $5,600.00 and did not report it as sold to appellees at $6,630.00. It is shown that the report of sale to appellant for $5,600.00 was confirmed without objection or exceptions from him. A demurrer was filed to the petition but before it was acted upon by the court an amended petition was filed containing in substance the same averments as the original. Upon hearing the court sustained the general demurrer, and upon appellant’s declination to further plead, his petition as amended was dismissed, and he prosecutes this appeal.

The general rule is in accord with that adhered to by this court and does not allow a recovery of damages from a bidder at a public sale of land whose bid is not shown to 'have been accepted and reported by the master to the court and confirmed by the court. It is said that a bidder at a decretal sale is not a purchaser until the master commissioner reports the sale to the court and the court confirms it. The action of the court is the acceptance of the bid. If the sale is not confirmed the bid is not accepted and the bidder is not bound. Up to that time it is not certain that the purchaser will get the property at his bid, and no cause of action has arisen in favor of those owning or claiming an interest in the land and against the bidder.

In the case of Blakeley’s Admr. v. Hughes, 140 Ky. 175, we, in considering a similar state of facts, said:

“The second sale realized less than the first. The second sale was reported and approved and confirmed without exceptions. A rule was subsequently issued against the 'successful bidder at the first, to show cause why he should not make up the loss. The court held that he was not liable because the plaintiff, the only party complaining, 'had allowed, without objection, the last sale to be confirmed, thus investing the purchaser with a complete title, and making it impossible for appellee (the first purchaser) to obtain the land.’ ”

In concluding that opinion we added: “If the second sale results in fetching a less price than the first, the purchaser in the first maybe proceeded against by rule at the instance of the parties in interest to make up the loss; but that if the second sale be ordered and made, and be approved by the court, before confirming the first sale, and before giving the purchaser thereat an opportunity upon confirmation to take the property at his bid, the first bidder is thereby released from all liability on his bid.”

Inasmuch a© the sale to appellees was not reported by the master to the court and was not, therefore, confirmed or confirmable, it is manifest that appellees were not bound on their bid, especially when it is considered that appellant filed no exceptions to the report of the commissioner showing appellant to be the highest and best bidder, and stood by and allowed the sale to him to be confirmed. He is not entitled under the facts of this case to a recovery. His petition as amended did not state facts sufficient to support a judgment in his favor. The demurrer was, therefore, properly sustained.

Judgment affirmed.  