M. B. Macfarlane, Appellant, v. D. S. Macfarlane, Jesse H. Dorsey and Emily C. Dorsey, Appellees, 50 Fla. 570

Hocker, J., (fter stating the facts.) M. B. Macfarlane appealed from the order of the 20th May, 1905. vacating the previous order confirming the sale, and also from the order of the 25th May, 1905, and assigns as error here that the Chancellor erred in each of said orders, and amongst others makes the contention that they are erroneous because he had no notice that such orders would be applied for. The record sustains the contention. It does not appear that he was given any notice. He was the purchaser at the sale and had paid to the master the amount of his bid, and the sale had been confirmed by the court.

He was a necessary party to any proceeding instituted to set aside or vacate the order of confirmation. 17 A. & E. En. Law (2nd ed.) 996 and authority cited in note 5. The orders from which he appealed are therefore erroneous. The appellees also assign as error in substance: 1st. That the court had no jurisdiction to render the decree confirming the sale and issuing a writ of assistance on the 17th May, 1905; and, 2nd, that the court erred in rendering said decree, and also others not necessary to be considered. The petition of M. B.

Macfarlane for a confirmation of the sale and a writ of assistance was brought in by him for a hearing on the 17th May, 1905. His petition was resisted by the Dorseys, who filed a sworn answer thereto, also certain affidavits tending to show that the property had been sold at very much less than its value.

The answer of the Dorseys attacked the bona fides of the sale on several grounds, among them that the advertisement of the property was not made in any one of the several newspapers published in the city of Tampa where the property is located, but in a weekly newspaper published in the town of Plant City, twenty miles distant from Tampa, and having a small circulation in Tampa.

That this property was of great value, to-wit: $14,000, and sold for $100.00; that they never saw the advertisement, and did not know of the sale until about December 1904; that this publication was made in the Plant City paper in order that neither the Dorseys nor the public should have notice of the sale, and for' the purpose of permitting D. S.

Macfarlane or his agents to bid on the property at less than its value; that the price was inadequate and insufficient and is not such a price as the property would have brought if it had been advertised in a Tampa paper, in which city there were three daily papers of large circulation. Several affidavits were filed by the Dorseys, tending to show that the property at the time of the sale was worth seven or eight thousand dollars. M. B.

Macfarlane did not meet this attack by any denial of the statement made in either the answer of the Dorseys or the affidavits, under which the petition for confirmation was acted on and granted. It is true that the record of the case before the Chancellor showed that when the sale was made the bill for the foreclosure of a mortgage on the property involved for over $8500.00, filed by the original complainant Hills was still pending. But the record also showed that D. S.

Macfarlane in his answer to said bill was claiming that this mortgage had never been properly recorded and that he was an innocent purchaser or judgment creditor, without actual notice of the mortgage. This defense had not been heard or disposed of. These were the circumstances when the petition for confirmation was presented and acted on. In the case of The Lawyers’ Co-Operative Pub. Co. v.

Bennett et al 34 Fla. 302, this court laid down the generally accepted doctrine that mere inadequacy of pricé alone is not sufficient to set aside a judicial sale, but when such inadequacy is connected with or shown to result from any mistake, accident, surprise, misconduct, fraud or irregularity the sale will generally be set aside. In that case a bill was filed to set aside a sale under an execution which issued on a judgment at law.

In the case at bar the sale was made in a chancery cause, where in a certain sense, the sale is made through its agent cr agents by the court itself, which has the power to prescribe the time, manner and conditions of the sale, when these matters are not controlled by statute. It is said by some courts that a sale by the Sheriff under a common law execution is a ministerial act, but a sale in a chancery cause is a judicial one, usually not complete until the sale has been confirmed. Rorer on Judicial Sales, Sec.’s 7 to 46 inclusive. See McGregor v. Kellum decided at this term.

There is no question but it is the right and duty of the chancery courts to exercise a supervision their process and to protect parties from all fraud, unfairness and imposition in their execution. Rorer on Judicial Sales, Sec.’s 394 to 398. In the case of Schroeder v. Young, 161 U.

S. 334, the Supreme Court of the United States enounce the rule that while mere inadequacy of price has rarely been held sufficient in itself to justify setting aside a judicial sale of property, courts are not slow to seize upon other circumstances impeaching the fairness of the transaction as a cause for vacating it, especially if the inadequacy be so gross as to shock the conscience. The court in its opinion repeats the views of Justice Bradley in another case (Graffan v. Burgess, 117 U. S. 117-180) that it is not conclusive that the proceedings were regular and according to the forms of law.

Applying these principles to the case at bar, we are of opinion that the order confirming the sale and granting the writ of assistance made on the 17th May, 1905, was erroneous. The proof was uncontradicted that the notice of sale was published in a Plant City paper, more than twenty miles from the city of Tampa where the property was located; that it had little or no circulation in Tampa, and that this notice was thus published to prevent a fair sale of the property. Moreover, it appears that D. S. Macfarlane, who is a brother of M. B.

Macfarlane, is perfectly willing to let this sale stand, though by it he apparently realizes nothing on a large judgment, which up to this time he had been very industrious to enforce. Granting that M. B. Macfarlane may eventually have to pay the Hills mortgage, he would still get the property for less than half its estimated value. If he does not have to pay the Hills mortgage he will get property worth $7500.00 or $8000.00 at the time of the sale for $100.00.

We are of opinion, without meaning to reflect upon the integrity of any of the parties, that there was an element of unfairness in the method of advertising and selling the property, which, coupled with the inadequate price, demands that the order confirming the sale and ordering the writ of assistance dated the 17th May, 1905, be reversed. Inasmuch as appellant M. B. Macfarlane as appears from the record, has been put into possession of the property, and has presumably been receiving the rents and profits, it is ordered, adjudged and decreed that the Chancellor direct an accounting with the said M. B.

Macfarlane, that upon such accounting he be allowed as a credit, the sum of one hundred dollars which amount he paid for the property at the sale, and also taxes paid or any moneys paid for necessary repairs, and expenses, and that he be charged with the rents and profits during the time he has been in possession; and if there be any balance due from him that he be required to pay the same into the registry of the court, subject to its order; and further that possession of the property be restored to the owner where it must remain until ousted by proper proceedings.

The costs of this appeal will be taxed equally between the appellant and the cross-appellants, or appellees. Taylor and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.