John R. W. STERLING and Mary Louise Blackwelder, Appellees, v. Leroy J. BLACKWELDER and P. David Sterling, Appellants, 387 F.2d 346

ORDER OF DISMISSAL On September 15, 1967, this court entered judgment and filed its opinion in case No. 11,243 entitled Sterling v. Blackwelder, et al., 383 F.2d 282. We specifically held that the district court was empowered to terminate the trust if in its discretion the district judge thought the situation to be such as to make termination desirable and in the best interest of the parties.

On September 20, 1967, as a part of proceedings which had been underway during the summer despite the appeal (without any objection from any of the parties) the district court entered an order confirming the sale of the entire property to one Wallace F. Holladay at a price of $1,000,000.00. All parties concerned, with the exception of Leroy Blackwelder and P. David Sterling, consented to the order confirming the sale and joined in urging the court to approve the sale to Holladay.

The court heard testimony of a qualified land appraiser and its determination that $1,000,000.00 is a reasonable price was clearly supported by substantial evidence and cannot be said to be clearly erroneous. Prior to this order the court had authorized a partial sale to satisfy secured indebtedness, but the commissioner had been unable to get bids on the smaller tract or tracts offered. On October 5, 1967, Leroy J. Black-welder and P. David Sterling filed a notice of appeal from the district court’s order of September 20, 1967, confirming the sale of the entire property. Soon thereafter, John R. W.

Sterling and Mary Louise Blackwelder moved this court to dismiss the appeal, or alternatively, for

summary affirmance. Subsequently, Gideon L. Haynes, Robert E. Skinner and Merit H. Canby, trustees under certain deeds of trust securing indebtedness to which the property is subjected, joined in the motion to dismiss, or in the alternative, for

summary judgment. After these motions were filed, we caused the Clerk of our court to notify Leroy J. Blackwelder and P. David Sterling that the court would receive and consider any statements or briefs which they might care to submit in support of their purported appeal. On November 6, 1967, P. David Sterling filed a letter brief addressed to Chief Judge Haynsworth, and Leroy J. Blackwelder likewise filed a much longer letter brief, also addressed to Chief Judge Haynsworth. We have carefully considered these letters and the papers attached to Mr. Black-welder’s letter.

Neither Sterling nor Blackwelder stated any legally sufficient reason for our entertaining their appeals in this case. Their statements of position are simply an attempt to relitigate the matters already considered in the prior appeal. Their arguments are those that might have been, and probably were, addressed to the discretion of the district judge. A typical contention of Mr. Blackwelder is simply that the land will be worth more every day and could easily come to be worth $5,000,000.00, and that he can sell a smaller portion of the land to pay the debt.

On fully sufficient evidence the district court has found otherwise. A previous effort to sell a piece of the land produced no bids. The remainder of the contentions are not worth narration, consisting entirely of a recital of what might have been but is not. If we were to treat this appeal in the normal course, the result could be to invalidate an approved sale merely by the lapse of time. The rights of the secured creditors cannot be ignored, and we think it would be unfair to them and the other litigants to delay decision due to a patently frivolous appeal. The appeals of P. David Sterling and Leroy J.

Blackwelder are dismissed. This 14th day of November, 1967. CLEMENT F. HAYNSWORTH, JR. Chief Judge, Fourth Judicial Circuit HERBERT S. BOREMAN United States Circuit Judge J. BRAXTON CRAVEN, JR. United States Circuit Judge