
    *Effinger v. Ralston & als.
    August Term, 1871,
    Staunton.
    Sale of Land — Vendor’s Lien — Case at liar.— It sold land to E. and retained the vendor's lien. E sold parts of the land to P and Q. E not paying R, R filed his hill against E, P and Q, to enforce his lien. The court decrees a sale, of that in possession of E first, and if that is not sufficient, then of that bought by P and Q. The sale is made, and P and Q bny the parts they had before bought of E, at less than they were to give to E. The commissioner reports the sales good. E obiects to the confirmation of the sale, on the ground of the inadequacy of price, but he does not move to open the biddings, or offer an advance. HjsTjD:
    1. Same — Same—Same.—There was no error as to R, in directing the sale of the parts by P and Q, instead of confirming the sale of E to them; especially as Q alleged thatE had defrauded him, and he did not intend to pay him.
    2. Judicial Sales — Inadequacy of Price. — If E objected to the sale for inadequacy of price, he should have moved the court to open the biddings, and have offered an advance on the price bid: his objection to the confirmation of the sale, without more, was no ground for refusing to confirm it.
    3. Same — Reopening Biddings — Mode of Procedure.— Por the mode of proceeding on application to open the biddings, and on what advance it will be done, see the opinion of Monctijbe, P.
    4. Case at Bar— Qua;re. — Quasbe: If E may not recover of P and Q the difference between the price they gave at the judicial sale, and that they had contracted to pay to him.
    
      This case was heard at the August term at Staunton,- and the case was decided at the November term at Richmond.
    In March 1867, Jesse Ralston filed his bill in the Circuit court of Rockingham county, against Jacob P. Effinger, Henry Elick and Timothy Quinlan to enforce *the vendors, and also judgment, liens, against a tract of land in the county of Rockingham, which Ralston had sold to Effinger, and parts of which Effinger had sold to the other defendants.
    In October 1858, by a written agreement under seal, Ralston sold to Effinger a tract of land estimated to contain three hundred and thirty-ope acres, for the sum of $12,000, of which $1,000 was to be paid in cash, Effinger was to discharge a debt of $3,000 due to Robert Grey, for which there was a lien on the land; and the remainder was to be paid in seven equal annual pa3rments of $1,142.85. And Ralston was to convey the land by deed with general warranty, in which a lien was to be reserved for the purchase money.
    Effinger was put into possession of the land, and in 1860 Ralston and wife conveyed it to him with general warranty. In the same year Ralston recovered a judgment against Effinger on the first bond; and in 1866, he recovered judgments on the other bonds. He set out the foregoing facts in his bill; stated that Effinger had lately sold to Elick about eight acres, and to Quinlan about eighty acres of the land. That the debt of $3,000 to Grey, which, by the contract, Effinger had assumed to pay, was still unpaid. And he prayed that the land might be sold for the payment of the judgments; and for general relief.
    The defendants demurred to the bill, and Effinger also answered. He stated some small payments he had made on the judgments, and also some interest on- the debt to Grey; and he says that the plaintiff derived his title to the land, except about thirty acres, from his father, David Ral-ston, and that Dav’d Ralston had not made a deed to him for it: though said David had joined with the plaintiff in conveying the property to the trustee in the deed to secure Grey’s debt.
    In May 1867, the cause came on to be heard, when the court overruled the demurrer, and directed a commissioner *to ascertain and report the amount due from Effinger to the plaintiff, oa account of the purchase of the land; and leave was granted the plaintiff to file an amended bill. This amended bill made the heirs of David Ralston, deceased, H. Jewett Grey, to whom the debt due Robert Grey, had, on the death of the latter, been transferred, parties.
    The commissioner returned his report, and the cause came on again to be heard, when it appearing by said report that there was due from Effinger to the plaintiff $7,780.57, of principal money due by judgment, with interest from the dates, when the payments fell due, and that Effinger was further indebted to Grey in the sum of $3,000, with interest from January 1st, 1849, subject to some small credits named, and that Ralston could make a good title to the land, the court made a decree against Effin-ger in favor of Ralston and Grey, for the sums ascertained to be due to them respectively ; and unless he paid the money within sixty days from the date of the decree, the sheriff who was appointed a commissioner for the purpose, should proceed to sell the land, on the terms of one-fourth cash, and the balance in four equal annual payments, bearing interest from the day of sale; the title to be retained until the whole purchase money was paid. And out of the proceeds of sale he should first pay off Grey’s debt, and then pay to Ralston the amount ascertained to be due to him. The decree provided that the land' in the possession of Effinger should be first sold; and if that was not sufficient to pay the debts, the residue of the tract, or so much as was necessary, should be sold.
    The commissioner returned his report of the sale, by which it appeared that the land still in the possession of Effinger, consisting of two hundred and fifty acres, was sold at $31.10 per acre, and Ralston became the purchaser; that the land in the possession of Quinlan was sold at $32.70 per acre, and he was the purchaser; and *that Elick became the purchaser of the eight acres in his possession at $25 per acre. The commissioner says “that in his opinion, as well as of persons who are disinterested with whom he has conversed, all of these sales have been judiciously made, and ought to be confirmed.” And he says that the price realized from the sales exceeds considerably the amount which Effin-ger was to pay for the property when it was in good condition; and that it has been much injured since his purchase.
    The commissioner returned with his report a number of affidavits of farmers residing near the land and knowing it well, expressing the opinion that it went for its full value. There is .also an affidavit from Quinlan, in which he says, that though he contracted in 1866, or February 1867, to pay Effinger $45 per acre for the eighty acres he purchased, yet he was deceived by Effin-ger in regard to the lines and in other respects, in such wajr that he determined shortly afterwards not to pay for it. And he did not intend to p^y any more than he contracted to pay at the sale by the commissioner; and that it is not worth that much.
    Effinger excepted to the report, and objected to the confirmation of the sale, upon the ground that the court should have confirmed the sales made by Effinger to Quinlan and Elick; and should have subjected the purchase money due to Effinger to the payment of the purchase money due to Ralston, instead of virtually setting said sales aside and ordering a resale. 2d. Because of inadequacy of price, as shown by affidavits filed. These were affidavits also filed by persons living in the neighborhood of the land, who express the opinion that the land was worth forty-five dollars per acre.
    The cause came on to be further heard on the 3d day of November 1869, when it was decreed that if Effinger files with the clerk of the court bond with good security in the penalty of $15,000, conditioned that at the next offer of the land for sale, he will bid five per cent, more *than the commissioner sold the land for, including costs of said sale, and upon the same terms, and comply with them, then the commissioner should proceed to advertise and sell the said land upon the terms prescribed in the former decree. But if Effinger did not execute said bond within sixty days from the rising of the court, then the sale made should stand confirmed; and the sheriff was directed in that event to deliver the land to the purchasers. Effin-ger obtained an appeal from this decree to the District court of appeals at Winchester, from whence it was transferred to this court.
    Harris, for the appellant.
    Woodson and Eiggett, for the appellees.
    
      
       See Roudabush v. Miller, 32 Gratt. 454, and footnote-, Hudgins v. Lanier, 23 Gratt. 494, and foot-note-, Todd v. Gallego, etc.. Co., 84 Va. 590, 5 S. E. Rep. 676; Kahle v. Mitchell, 9 W. Va. 515; Curtis v. Thompson, 29 Gratt. 474, and foot-note.
      
      See generally, monographic note on “Judicial Sales.’"
    
   MONCURE, P.,

delivered the opinion of the court.

The court is of opinion that the Circuit court did not err, at least so far as the ap-pellee, Ralston, is concerned, in not confirming the sales made by the appellant to Elick and Quinlan in the proceedings mentioned. Those sales were made in subordination to the paramount right of the said appellee, Ralston, who, in his contract of sale to the appellant, expressly reserved a lien on the entire tract of land sold, to secure the deferred instalments of the purchase money. The sales to Elick and Quin-lan of portions of the said tract of land, were subsequently made by the vendee, Effinger, without the consent of the vendor, Ralston, and of course were not binding upon him, and could not prejudice his paramount right to have the whole tract of land sold, if necessary, for the payment of the purchase money due to him. The court properly directed the commissioner appointed to make the sale, to sell in the first place the portion of the land remaining in the hands of Effinger; and if a sufficient amount should be realized from said sale to satisfy the decree, including costs of suit and sale, to make no further sale. But, in case a sufficient amount should not be realized from *said sale to pay off and satisfy the said decree, then the court properly directed the said commissioner to sell the residue of said land sold by Ral-ston to Effinger, or so much thereof as might be necessary to satisfy the balance due under the said decree ■ from the said Effinger. This was all that either Effinger, Elick, or Quinlan had any right to require in regard to the land sold to Elick and Quinlan. Ralston was not bound to engage in a controversy with them about the specific execution of the contracts of sale made to them by Effinger. If they had proposed to pay into court to the credit of the cause the amounts due on their contracts with Effinger, and had shown that such amounts were at least equal to the value of the land bought by them respectively, the 'Court ought to have accepted their proposition, received the money, and confirmed their title: and no doubt the court would have done so. But they made no such proposition. On the contrary, Quinlan, who purchased eighty acres of the land, says, in an affidavit filed and read as evidence in the cause, that he was deceived by Effinger in regard to the lines of the said land, and in other respects, and in such a way, that he determined, shortly afterwards, not to pay for it. It seems that the sale to Quin-lan was in February 1867, about a month before the institution of this suit; and, except as to $500 of the purchase money, which was to be paid in hand, was on a credit of one, two, three and four years. It would have been unreasonable and unjust to require Ralston to incur the expense, trouble, and delay of a suit to enforce the specific execution of this contract between Effinger and Quinlan, especially when Quinlan contested its validity on the ground of fraud.

The court is further of opinion that the Circuit court did not err in not setting aside the sale made by the commissioner in February 1869, on the ground of inadequacy of price, and ordering a resale. The commissioner who made the sale reported that it was for a fair and full *price, and ought to be confirmed; and many affidavits were taken and filed to that effect; while on the other hand, about as many were taken and filed to the contrary effect. The preponderance of the evidence seems to sustain the report, and the opinion of the Circuit court was to the same effect. To induce a court to set aside a sale fairly made in pursuance of a decree, merely upon the ground of inadequacy of price, there ought to be a decided preponderance of evidence of such inadequacy, even if it be conceded that mere inadequacy of price is, in itself, a sufficient ground for setting aside such a sale.

The court is further of opinion that the Circuit court did not err in making it a condition of a resale of the land that the appellant should file with the clerk of said court, bond with good security in the penalty of $15,000, conditioned that at the next offer of the land for sale he would bid five per cent, more than the commissioner sold the same for before, including the costs of said sale, and upon the same terms, and would comply with the terms of said sale. The court might well have refused to order a resale on any terms whatever, but have confirmed the sale absolutely; and of course the appellant has no right to complain of the terms on which a privilege was afforded him by the court of having a resale, if he desired one and could and would comply with the terms. He made no motion to open the biddings. If he had done so, and pursued the proper course in such cases, the court would have ordered them to be opened on proper terms. “Where a person is desirous of opening- a bidding, (says. Sugden in his law of vendors, p. 66, marginal), he must, at his own expense, apply to the court by motion for that purpose, stating the advance offered. Notice of the motion must be given to the person reported the purchaser of the lot, and to the parties in the cause. If the court approve of the sum offered, the application will be granted,” and a new sale ordered. “Mere advance of price, (says Sugden further, *Id.,) if the report of the purchaser being the best bidder is not absolutely confirmed, is sufficient to open the biddings;” “but the court will stipulate . for the price, and not permit the biddings to be opened upon a small advance; and although an advance of ten per cent, used, generally, to be considered sufficient on a large sum, yet no such rule now prevails; but in the case of a sale under a creditor’s suit, the court permitted the biddings to be opened upon an advance of S per cent, on ^10,,000. An advance of ;£350 upon ^S,300 was refused, and it was said that the former cases only established, that where an advance so large as £500 is offered, the court will act upon -it, though it be less than 10 per cent.” “The determinations on this subject assume a very different aspect when the report is absolutely confirmed. Biddings are in general not to be opened after confirmation of the report; increase of price alone is not sufficient, however large, although it is a strong auxiliary argument where there are other grounds.” (Id. 67.) “Where the biddings are opened, the advance is ordered to be deposited immediately, and the costs of the purchaser to be paid by the persons opening the biddings. ” (Id. 69.) Such are some of the rules of the English practice on this subject, and the same practice and rules, substantially, exist in this State, though not in all the States of the Union. They do not, however, apply to this case, as it was not a case for opening the biddings, no advance of. price having been offered, nor even a motion to open the biddings made. It is needless, therefore, to enquire whether the penalty of the bond required of the appellant as aforesaid was not greater than it might well have been.

The court is therefore of opinion that there is no error in the decrees aforesaid, and that the same ought to be affirmed. But the court is of opinion that such affirmance ought to be without prejudice to any relief to which the appellant may be entitled against the appellees, Elick and Quinlan, or either of them, either in this suit *or in any other suit he may be advised to bring on account of the sales made by him to them respectively in the proceedings mentioned. They have become purchasers at the sale made under a decree in this suit of the same land previously bought by them respectively of the appellant, but they have so become purchasers at less prices than those at which they had previously bought the land as aforesaid. And as they seem to have thus gotten what they had contracted for with Effinger, it may be just and equitable that they should account with him for the difference between the amount of purchase money agreed to be paid by them to him, and the amount of the price at which they purchased the same land under a decree in this suit as aforesaid. Such a mode of settlement would seem to be consonant with the case of Stephens v.- Hutchison, &c., 6 Gratt. 147. Without, however, deciding tha-t question, which cannot properly be decided upon the pleadings and proofs now in this cause, we think the decree appealed from and the affirmance thereof ought to be without prejudice as aforesaid; and it is therefore ordered accordingly.

The decree,was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree aforesaid. But, as the appellees, Elick and Quinlan, have become purchasers at the sale made under a decree in said suit, of the same land previously bought by-them respectively of the appellant, and have so become purchasers at lower prices than those they had agreed to pay to him for the same land, it may be just and equitable that they should account with him for the difference between the amount of purchase money agreed to be paid by them to him, and the amount of the price at which they purchased the same land under a decree in said suit as aforesaid. Such, a mode of settlement would seem to be consonant with what was decided by this court in the *case of Stephens v. Hutchison, &c., 6 Gratt. 147. Without, however, deciding that question, which cannot properly be decided upon the pleading and proofs now in the cause, the court is of opinion that the said decree appealed from, and the affirmance thereof, ought to be without prejudice to any relief to which the appellant may be entitled against the said Elick and Quinlan or either of them, either in this suit or in any other suit he may be advised to bring, on account of the sales made by him to them respectively as aforesaid.

Therefore, it is decreed and ordered that the said decree appealed from be affirmed, but without prejudice as aforesaid, and that the appellant pay to the appellee, Ralston, thirty dollars damages, and his costs by him about his defence in this behalf expended, which is ordered to be certified, &c.

Decree affirmed; but without prejudice.  