
    *Teel & als. v. Yancey & als.
    September Term, 1873,
    Staunton.
    i. Statute — Enabling Act — Constitutional.—-The act of March 5th 1870, commonly called the Enabling Act is a valid act, except the proviso which authorizes the Court of appeals to review the decisions of the Court of appeals organized under the reconstruction acts: and the District courts of appeal, sitting in December 1869 had jurisdiction to hear and decide the causes then pending therein,
    s. Judicial Sale of Land — Objections—Valid.—A judicial sale of land is excepted to, 1st: Because the land was sacrificed; 2d: Because one of the commissioners to sell was interested in the purchase of one-half of the land. 3d: Because a material advance was offered by a substantial bidder. 4th: Because there was no memorandum. These are valid objections, and the sale was properly set aside.
    3. Same — Same—Invalid.—It is not a valid objection to a judicial sale of land, that one of the commissioners was a plaintiff in the suit, in his own right and as administrator, and also had an interest in the land sold, both in his own right and as trustee of another, and as next friend of the infants.
    4. Same — Bonds—Payable in United States Currency.— In May 1863 there is a decree for the sale of land, and in August 1863 there is a sale by the commissioners, who announce publicly the terms of sale to be, on a credit of one, two and four yeafs: the purchase money to be paid in the currency which may be in use when the respective payments fall due: but with the privilege to the purchaser to pay one-half of the purchase money upon the confirmation of the sale by the court. The land, which was worth in gold eighty dollars per acre, sold for one hundred and forty-two dollars per acre; and the sale being confirmed, the purchasers paid one-half the purchase money with Confederate currency, executing their bonds for the other half, which fell due in August 1865 and 1867. They must pay off these bonds in the currency of the United States; that being the currency in use when they fell due.
    '*This case is sufficiently stated by Judge Christian, in his opinion.
    The case was argued by Baldwin and Sheffey for the appellants, and by Wood-son, Yancey and Wm. Robertson, for the appellees.
    
      
       Statute — Enabling Act — Constitutional.—in Bolling v. Lersner, 26 Gratt 43, the principal case is cited as holding that the enabling act is a valid act, except the proviso, which authorizes the Court of appeals to review the decision of the Court of appeals organized under the reconstruction acts.
      As to the unconstitutionality of the proviso, see foot-note to Griffin v. Cunningham, 20 Gratt. 31.
    
    
      
       Judicial Sale of Land — Objection^—Valid.—As to the four exceptions to a judicial sale of land laid down in the second headnote being valid objections, see Kable v. Mitchell, 9 W. Va. 517.
    
   CHRISTIAN, J.

This is an appeal from a decree of the late District court of the 6th Judicial District, affirming a decree of the Circuit court of Frederick county.

The following facts disclosed by the record, are necessary to be adverted to in order fairly to present the question this court is now called upon to consider.

Col. Wm. B. Yancey, of the county of Rockingham, departed this life in the year 1858, leaving a large real estate. After his death several suits were brought, having for their object the sale of his real estate, for the payment of his debts and the partition of the surplus among his heirs at law. It is not necessary to notice the proceedings in these several suits, (which were after-wards consolidated into one,) except the fact, that on the 3d of June 1860 the Circuit court of Rockingham entered a decree directing a sale of the real estate of which Col. Yancey died seized, and Thomas B. and Wm. B. Yancey were appointed commissioners to sell the same. This decree was not executed until January 1863.

The land at this sale was bid off by C. A. Yancey, one of the heirs, at $80.50 per acre. The upper part (one-half) was after-wards sold privately to Bernard P. Teel, at $80 per acre; and Wm. B. Yancey, the commissioner, who made the sale, agreed to take the other half at the same price. This sale was reported to the court, and its confirmation was resisted, upon the ground of inadequacy of price ; and much evidence was taken *upon that question.

The result was, that the court refused to confirm the sale; and by its decree entered on the 25th of May 1863 directed that Charles A. Yancey and Joseph R. Hogan, who were appointed commissioners for the purpose, should proceed to sell the land theretofore decreed to be sold in these causes, at public or private sale, upon the following terms: One-fourth in sixty days, one-fourth in twelve months, one-fourth in two years, and one-fourth in four years from the day of sale, with interest payable annually from the day of sale, taking from the purchaser bonds with good security for the payment, and retaining the title as ultimate security; with the privilege of paying one-half the purchase money upon the confirmation of the sale by the court. This decree was executed on the 7th of August 1863.

At this sale Bernard P. Teel and Wm. B. Yancey became the purchasers; Teel purchasing one-half of the home farm (of 457 acres) at $142.00 per acre, and Yancey the other half, at the same price; the wood land was also purchased by the same parties ; one hundred and thirty-seven acres being taken by Teel, for which he agreed to pay the sum of $1,570; and one hundred and thirty-eight and a half acres being taken by Yancey, for which he agreed to pay the sum of $1,402.32. This sale was reported to the court and confirmed without objection; and Teel and Yancey, in accordance with the terms of the decree allowing' the purchasers to pay one-half the purchase money upon the confirmation of the sale by the court, accordingly paid down in cash one-half the purchase money, and executed their bonds for the deferred payments, payable in two and four years from the day of sale.

These bonds fell due after the close of the late war, to wit, on the 7th of August 1865 and the 7th of August 1867.

*Suit was instituted by the heirs of Col. Yancey, for the purpose of subjecting the lands in the hands of the purchasers, (upon which a lien was retained,) to the payment of the balance of the purchase money. This claim was resisted upon the ground that the sale of the land was made for Confederate currency, or with reference to said currency as a standard of value; and it was insisted that the bonds due August 1865, and August 1867, should be scaled to their gold value. Numerous depositions were taken to show the terms of the sale, and the agreement of the parties as to the kind of currency for which the property was sold. And on the 25th July 1868, the Circuit court of Frederick entered its decree, declaring that “the court is of opinion that the testimony satisfactorily proves that at the sale made on the 7th day of August 1863, pursuant to the decree of May 1863, the deferred instalments of the purchase money were not payable in Confederate States treasury notes, but were payable in current funds; by which was understood and intended by the parties to said contract of sale, such funds as might be current at the dates when said instal-ments might fall due; that is to say, in the events which have ocpurred, in lawful money of the United States. It is therefore adjudged, ordered and decreed that one of the commissioners of this court ascertain what amount is still owing from the purchasers at said sale, with interest, &c., allowing full credit for the full nominal amount of the Confederate money paid in cash, &c.

Upon the return of the report under this decree, showing the indebtedness of Wm. B. Yancey, one of the purchasers, to be the sum of seventeen thousand five hundred and forty-five dollars and seventy-one cents, and of the other purchaser, Bernard P. Teel, the sum of seventeen thousand six hundred and twenty-nine dollars and seventy-five cents, the court decreed against them

and *their sureties, the payment of these several amounts; and further decreed that “if they and their sureties, shall fail to pay the said sums of money respectively, within sixty days from the date of this decree, then Charles A. Yancey, who is appointed a commissioner for that purpose, shall proceed to sell to the highest bidder, on the premises, so much land as may be necessary to pay what is due from each defaulting vendee upon his said purchase, upon the following terms, viz: one-fourth of the purchase money in cash, the residue in equal sums of nine, eighteen and twenty-seven months from the day of sale; all to bear interest from the day of sale, and to be secured b3T deed of trust on the land. ’ ’

To these decrees an appeal was allowed to the District court at Winchester. On the 3d of December 1869, that court affirmed the decrees of the Circuit court of Frederick: and an appeal was allowed from the decree of the District court to this court.

In the petition of appeal to the District court and to this court there are several errors assigned, and relied upon, in argument here, which I will now proceed to notice.

As to the first error suggested in the petition for appeal to this court, to wit: that the District court had no jurisdiction.“to hear the cause or make any decree therein,” it is sufficient to refer to the act of Assembly approved March 5th, 1870, commonly called the “Enabling Act,” and the construction of that act by this court in the case of Griffin’s ex’or v. Cunningham, 20 Gratt. 3^.

If the District courts w'ere not continued by the operation of the schedule, their acts were declared legal and binding by the act referred to; and that act was declared by this court, to be valid; except the proviso which gave this court the authority to rehear and review causes *decided by the court of appeals, organized under the reconstruction acts; the majority of the court holding that the legislature had no authority to confer such power upon this court, and that the proviso was • in this respect void. But in all other respects the statute was held by all the judges of this court,o to be constitutional, valid and binding. The question raised is therefore res adjudicata, and no longer open for discussion.

Another error assigned, is, that the Circuit court of Rockingham ought to have confirmed the sale made by Wm. B. Yancey, surviving commissioner, on the 13th of January 1863. That sale was excepted to, 1st: Because the land was sacrificed at private sale. 2d: Because Wm. B. Yancey, the commissioner, was interested in the purchase of the lower tract. 3d: Because an advance upon the price was offered by Mr. ' Price. And 4th: Because there was no memorandum of the sale.

The Circuit court sustained these exceptions, and set aside the sale. There was no error in that decree. It is manifest from the evidence taken upon the exceptions to the sale, that persons were prevented from attending the sale, in consequence of the prevailing impression that no sale would take place at the time advertised; which was based upon the current report that the widow would, not consent aijd unite in the sale. The doubt and uncertainty as to whether the widow’s dower would be sold with the land, manifestly affected the price ($80 per acre) for which it. was sold; several witnesses stating that the land would have brought $100.00 per acre, if it had been ascertained that the widow was willing to unite in the sale; and one witness, Geo. W. Price, (whose responsibility was not questioned,) binding himself to bid at the start $90 per acre, if the land should be put up again. It wTas also shown that one-half of the land was bought by the commissioner, Wm. B. Yancey, who *made the sale. Under these circumstances the Circuit court very properly set aside the sale, or rather refused to confirm it, and directed another sale to be made.

Another alleged error is the appointment of Charles A. Yancey, as commissioner to make the second sale, who was one of the plaintiffs in the suit, in his own right and as administrator de bonis non of his father, Wm. B. Yancey, as trustee of one of the other parties interested, and as next friend of certain infants.

There was nothing in these relations which disqualified him as a commissioner to do the behests of the court. In fact a commissioner is but the agent of the court. A sale by a commissioner is a sale by the court; his acts are subject to the control and superintendence of the court, and are liable to exception by any person interested; and, indeed, there is no sale without the approval of the court. The fact that Charles A. Yancey was one of the plaintiffs does not affect the validity of the sale.

Under the English practice in chancery proceedings, the conduct of the sales is usually given to the plaintiff, or other party having the charge of the general proceedings. (See 2 Dan. Ch. Pr. 1267.) Nor is there any thing in the rules of chancery practice in our courts, which forbids such appointment. The commissioner is the officer of the court, and acts under its supervision. His errors, when brought to the notice of the court, or when appearing on the face of the proceedings, will be corrected.

It is no where proved, or even charged, that the conduct of the commissioner was not perfectly fair and impartial, fío objection was made to the commissioner in the court below, nor was the court asked to substitute 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 this court, and comes too late, even if it could have availed the party in the court below. See Goddin v. Vaughan’s ex’x, 14 Gratt. 102, Roberts v. Roberts, 13 Gratt. 639.

The remaining assignment of error, and the one mainly relied upon by the counsel for the appellants, is that the court below erred in decreeing that the deferred instal-ments of the purchase money for the land sold pursuant to the decree of May 1863, “were not payable in Confederate States treasury notes,” but “in such funds as might be current at the dates when said instalments might fall due;” and in decreeing against the appellants’ payment of these sums in the present currency.

It is insisted for the appellants, that the sale was made for Confederate currency, or with reference to said currency as a standard of value; and that therefore the instal-ments falling due in 1865 and 1867 ought to be scaled. They rely in their answers, mainly upon the fact that the land sold for so large a price, $142.50, as to preclude the idea that it was sold for any other than depreciated Confederate currency. Teel says, “the prices at which these lands sold show that the payments were to be made in current funds, or Confederate money, and that currency was the standard of value in the contemplation of the parties. ’ ’

Price, who was the purchaser from Wm. B. Yancey, of his part of the purchase at the sale, says in his answer: “The price was so far above the regular value of the property in any other currency as to preclude the idea of any other standard of value.” They both insist that the deferred payments should be scaled. It is a noteworthy fact that neither of the defendants make any reference to what occurred at the sale as to the terms upon which the land was sold as announced by the commissioner and auctioneer, but rely entirely upon the presumptions ^'arising from the price agreed to be paid for the land, as fixing the standard of value with reference to which they purchased.

Before referring to the evidence in the record, which is clear and uncontradicted, it may be observed that the mere fact that the land brought nearly double its value in gold, is not of itself a conclusive presumption under the circumstances oí this case, that the sale was made for Confederate currency, or with reference to such currency as a standard of value. It must be remembered that the real value of the land is fixed at 75 or 80 dollars per acre, that it was assessed before the war at $80 per acre. The purchaser had the privilege of paying down in cash one-half of the purchase money, and the balance was to be paid in two and four years. The home farm, 457 acres, sold for $67,379 00. Half of this amount, $33,689.50, the purchaser could, if he chose, pay in Confederate currency, worth $2,406.32 in gold. With this privilege he could get one-half the land at from five to six dollars an acre, which was worth from $75 to $80 per acre. He might therefore, be perfectly willing to take the risk of paying for the other half in a sound currency. But the risk was a small one at best; for if required to pay the balance of the purchase money in gold it would not be more or very little more than the value of the land. On the other hand, he had the chance, and not a remote one, of paying the whole in a depreciated currency. Indeed, if the war had lasted four months longer, one-fourth more of the purchase money would have been received in a still more depreciated and nearly worthless currency. It, therefore, by no means follows, that the large price for which the land sold, furnishes a conclusive presumption that it was sold for Confederate currency when it was sold upon such long credit, and the purchaser had the privilege of paying- fgr one-half in *a currency depreciated fourteen to one. The presumption is rather in favour of taking the risk of paying the deferred in-stalments in a sound currency, especially when there was every thing- to gain, and nothing to lose.

But in this case we are not left to presumptions arising upon isolated facts: but we have clear, distinct, and uncontradicted proof of the terms upon which the land was sold by the commissioner and purchased by the appellants. Seven witnesses were examined, among them the commissioner who made the sale and the auctioneer who cried off the land. They all concur in the statement, that the . terms were publicly announced, and that these terms were, that one-half of the purchase money would be received in cash when the sale was confirmed, and the other half to be paid in two and four years from the day of sale, in the currency which might be in circulation at the maturity of the deferred payments.

Mr. Bogan, one of the commissioners who made the sale, says: “The notes were drawn payable in one, two, three and four years; payable in current funds; the purchaser having the privilege of paying the two first payments upon a confirmation of the sale; the two deferred bonds to be paid in the currency at the time they fell due.” “I recollect distinctly announcing the terms myself.” “I announced it to the crowd for the benefit of all concerned. ” In answer to the question: “You state the deferred bonds were to be paid in the currency of the country at the time they fell due: Explain whether you mean the currency of the country, which existed at the date of the sale, or the currency which should exist when the bonds matured.” Answered: “The currency which should exist at the maturity of the bonds; that was my understanding. ”

Mr. Bowman, the auctioneer, states: “It has been *my habit to announce the terms of any sale previous to its commencement. I think I did in this case, but am not certain: I recollect also that Mr. Bogan announced the terms of the sale too, but at what particular time, whether at the commencement or after the bidding had begun, I can’t say; I think it was after the bidding begun. There was some difficulty or contention as to the manner of the payments, and Mr. Bogan got 'upon the block, and announced the conditions. I went there, in the first place, not as an auctioneer but as a bidder, with the determination to buy the property. I was employed after I got there to cry the sale, and announced to them that I intended to bid. I did bid upon the property to a certain amount, and declined bidding further on account of the conditions of the sale, for this reason: As I understood the conditions, whatever was the currency of the country when the bonds matured, would have to be paid; and I was very apprehensive that Confederate money would not be the currency then.” He further states, that his last bid was $142.25, and that there were several bids afterwards.

Hive other witnesses who were present at the sale, concur in stating that it was distinctly announced by the commissioner making the sale, that the deferred payments were to be made in whatever might be the currency in circulation, when these payments became due. Not one of these witnesses is contradicted; nor can a witness be produced who was present at the sale, who will say that the terms were different, or that they were not announced as stated by these witnesses, on the day of sale. It is a pregnant fact that neither of the purchasers are examined as witnesses to prove that they did not so understand the terms of sale; and in their answers, neither say one word on the subject, but rely ^exclusively on the large price bid as affording a presumption that the sale was for Confederate money.

I have already shown, that without looking to the evidence in the cause, this presumption would by no means be a conclusive one. But if it could be raised, is entirely overcome by the undisputed facts in the cause. There is still another fact which, standing alone, would go far to show conclusively that the whole of the purchase money was not to be received in Confederate money, but the deferred payments in such currency as might be in circulation at their maturity; and that is the fact that two hundred dollars per acre was actually offered in Confederate money, and was refused.

The witness, Gibbens, says: “I was offered that day (the day of sale) $200 per acre, if I would purchase and agree to take the responsibility of the deferred payments.”

Mr. Bogan says: “I was offered privately $200 per acre for the land, by Mr. Branch, of Petersburg. ’ ’

I am of opinion that it is conclusively shown by the evidence, of which there is no conflict, that the true understanding and agreement of the purchasers, that the bonds maturing on the 7th of August 1865, and the 7th of August 1867, should be paid in the present currency, that being the currency in circulation when the bonds fell due; and that in accordance with the principles settled by this court in Boulware v. Newton, 18 Gratt. 708; Kraker v. Shields, 20 Gratt. 379; and Morgan’s adm’x v. Otey, 21 Gratt. 619, the decree of the District court should be affirmed.

I am the more satisfied with this conclusion, not only because it is based upon well settled principles, which must now be regarded as firmly settled by this court, but because it meets all the equities of the case.

If it were possible to regard the sale in' this case as a sale in *full for Confederate money, and scale the payments, then the purchasers would be confirmed in their title to this real estate, for the most part the property of infants, who are the special subjects of protection in a court of chancery, by paying the paltry sum of between five and six thousand dollars, when the land is shown by all the evidence, to be worth over thirty-four thousand dollars. On the other hand, when the appellants pay the amount decreed against them, they will pay not more than the real value of the land. I am not disposed, therefore, to disturb that decree, and think it ought to be affirmed.

MONCURE, P., and STAPLES, J., concurred in the opinion of Christian, J.

ANDERSON and BOUEDIN, Js., dissented.

Decree affirmed.  