
    John L. Miller and wife vs. M. J. Law and others.
    
      Commissioner’s Sales— Con tract.
    
    The Commissioner has a discretion, subject to the control of the Court, to withdraw land from sale after it has been offered, and even after a bid has been received and cried. If he does so, the highest and last bidder is not entitled to a conveyance, there being no contract with him.
    BEFORE DUNKIN, CIL. AT CHAMBERS,
    NOVEMBER, 1858.
    The bill, filed in Sumter, was for partition of a tract of land containing about seven hundred and eighty acres. After a protracted litigation a decree for partition was taken by consent. The commissioners appraised the land at six dollars an acre and recommended a sale, which was ordered — the terms being, “ so much cash as will pay the costs of this suit, and the fees by the Court heretofore ordered — for the balance, bond with approved personal surety, payable in one and two years, with interest from the day of sale, with the mortgage of the premises.”
    The land was advertised for sale on sale day in October, 1858. The facts in relation to the offer and withdrawal of the same from sale, are stated in the affidavit of Samuel Mayrant, one of the defendants, which affidavit is as follows
    
      a Personally appeared S. Mayrant, who makes oath that, on the sales day in October, 1858, the lands described in'the annexed advertisement, were publicly offered for sale by W. F. B. Haynes worth, Commissioner in Equity for Sumter district, before a large concourse of persons, after due proclamation by his cryer, calling for bids at so much per acre. That this deponent bid the sum of fifty cents per acre, which was cried by the crier for at least the space of twenty-five minutes. The Commissioner then announced that he would not let the land go for that price, and this deponent notified him that he claimed the land at his bid, and offered compliance.
    “ That in a short time afterwards, say about half an hour, the Commissioner again put up the land, the cryer crying the last bid of fifty cents per acre; this deponent then offered a bid of seventy-five cents per acre, which the cryer took, and cried for about the period of five minutes. No other bid was made, and this deponent claimed the land at his bid and offered compliance. The Commissioner then declared that he would not let the land go at that price, and suspended the sale, and said he would take the responsibility. This deponent then demanded his titles, and made a tender of the money.”
    Notice was served on the Commissioner, that a rule would be moved for requiring him to shew cause why the bid of S. Mayrant, of seventy-five cents per acre, should not be- set down and entered as the last and highest bid, and why he should not make title to the said S. Mayrant upon his compliance with the terms of sale.
    The return of the Commissioner admitted the facts stated in the affidavit, set forth that the bid was insufficient to satisfy the costs and the fees ordered to be paid, and submitted that the matter was within his discretion ; that his responsibility was to the parties, and not to a bidder, who had no rights until his bid was accepted.
    His Honor, Chancellor Dunkin, refused the rule, and the said S. Mayrant appealed on the grounds :
    1. Because the crying the bid was an acceptance of the offer-to purchase at the amount of it, provided no higher one was obtained, and the Commissioner was bound to knock down the same, and complete the sale to such highest bidder.
    
      2. Because the Commissioner was the organ of the Court, to carry out its prescribed directions, and has no power to change the terms and conditions fixed in the order, so as to affect the sale, by refusing to make a conveyance to the highest bidder.
    3. Because, in view of the circumstances, the said S. May-rant was, of right, entitled to the order asked of the Chancellor, and the actings of the Commissioner were arbitrary, and the power exercised by him, if sustained by the Court, dangerous in its consequences, and prejudicial to sales decreed by it.
    
      Moses, for appellant.
    
      Bellinger, Law, contra.
   The opinion of the Court was delivered by

Johnston, Ch.

Whether the Commissioner rendered himself liable, as for .misconduct, in refusing to keep up the bid-dings and to close a contract with Mr. Mayrant upon his bid, or not, it is certain that no contract was closed with him; and he is not entitled to have a conveyance, either under a rule, or under a bill exhibited for that purpose.

But it is the constant practice to allow commissioners to withdraw property, temporarily, from sales, when they see that to press the sale would be to sacrifice the property. I am of opinion they should have this discretion, under the control of the Court. It may be liable to abuse; in which case the Court can control it by peremptory orders, or otherwise. But, on the other hand, when judiciously exercised, as in this instance, it is most wholesome.

It is ordered that the appeal be dismissed.

D union, C., concurred.

Appeal dismissed.  