Yetzer v. Applegate

¶1At the time the receiver was appointed, December 27,1883, it was ordered “that the receiver proceed to sell the pork-packing establishment at as early a day as he can obtain the fair cash value of the same therefor at private sale.” Thereafter, and before the sale, the buildings were destroyed by fire. In the final decree entered in the district court, it was ordered, among other things, that the receiver report the amount of money and property held by him, “and that all partnership property be by him sold at public sale, after giving such notice as is required for the sale of like property at execution sale.” The report filed January 13, 1890, shows that until recently, before the sale, the receiver had been unable to obtain any offer for the land; that, then having an offer, he caused the same to be appraised by three competent, disinterested persons; that the land had been sold for taxes, and the time for redemption was nearly past; that he sold the land at private sale to Applegate Bros, for two hundred and seventy-five dollars and fifty cents, being more than the appraised value; that he executed and delivered *123deeds conveying the interests of the firm to the purchasers, having received the purchase price, and out of the proceeds paid seventy-two dollars and fifty cents to redeem from the tax sale, and fifteen dollars expenses for examining records and mating conveyance.

¶2January 3, 1890, the appellee, J. C. Yetzer, filed his petition in the nature of exceptions to the report, and to set aside the deeds made by the receiver. Therein he shows the orders of court already mentioned, and states as reasons why the report should be disapproved, and the deeds canceled, that the sale was not as ordered; that it was secretly and privately made by the receiver to his sons, for an inadequate consideration, without any notice to or consent of the appellee, and for the purpose of securing the property to the receiver himself. The appellee states that he is upon the bond of the receiver; that the receiver has disposed of all his property; that he is the secret purchaser of the land in questionthat the alleged consideration has never been paid to him; and that, if the sale is confirmed, the appellee will be chargeable as bondsman therefor. ■

¶3The appellants’ somewhat lengthy answer to this petition may be summed up thus: They state, as authority for making the sale when and as it was made, the first order of court, and that the appraisement, sale and conveyance were made with notice to the appellee, and without objection from him. They state, as showing the necessity of so selling the land, that it had been sold for taxes, and notice to redeem served; that the time to redeem would expire in a few days; that the receiver did not feel justified in paying out money to redeem without an order of court, and that there was not sufficient time after the fact of the tax sale was discovered to procure such an order; that those interested in selling the property had been unable to procure any offer therefor previously to that made by *124Applegate Bros.; and that their offer was upon condition that they could purchase and have possession at once. They state, as showing that the sale was advantageous, that the property was only suited for manufacturing purposes, and not readily salable; that the price paid was in excess of the appraised value, in excess of the estimate which the appellee had formerly placed upon it, and was its full and reasonable value. They alleged that the sale was made in good faith, upon the advice of counsel; and in the belief that it was satisfactory to all concerned. They denied that the receiver was a secret purchaser, and denied that the consideration was not paid to him by the purchasers.

¶4I. We first inquire as to the authority of the receiver to make this sale when and as he did. It seems 1. Receivers: disposition of property at private sale: validity. to have been the view of the appellants and their counsel that the second order of the court for the sale of property did not supersede the first order because of the final decree, in which the last order was made, having been appealed from, and that, regarding this as questionable, they sought the consent of the appellee to the sale. It appears from the testimony of Mr. Curtis, counsel for the appellants, and Mr. De Lano, counsel for the appellee, that Mr. Curtis called on Mr. De Lano, and informed him that they had an offer for the property at private sale, and wished to know what Mr. Yetzer would desire respecting the manner in which the sale should be made — whether he would consent that the receiver might make a private sale. Mr. Curtis says that he stated the price offered, but did not know or tell who the purchasers were. Mr. De Lano agreed to see Mr. Yetzer, and the attorneys separated; Mr. Curtis understanding that, if Mr. Yetzer objected to the sale, he would notify the appellants thereof, while Mr. De Lano understood that the appellants would not make the sale until they had first learned what Mr. *125Yetzer’s preferences were. Mr. De Lano states that he saw Mr. Yetzer the next day, and told him all that Mr. Curtis had said respecting the sale, and that Mr. Yetzer told him what his desires and preferences were; that understanding that the sale would not he made until they had learned Mr. .Yetzer’s preferences, or whether he had any objections to the sale, he did not report his preferences. Mr. Yetzer testified that he asked DeLano the price, that he said he did not know, and that he (Mr. Yetzer) said he did not want it sold that way. De Lano admits that Mr. Curtis may have told him the price that was offered. We think the fair conclusion from this testimony is that, there being a question whether the receiver had a right to sell under the first order of court, Mr. Yetzer was informed through his attorney that it was proposed to sell at private sale, and the amount that was offered, and, being so informed, interposed no objection. We think 'the receiver was warranted in construing his silence as giving consent, and as, with that consent, he had the acquiescence of all parties concerned in the making of the sale, we conclude that he was authorized to make it, whether the first order of court was superseded or not.

¶5II. The sale, though made under authority, should not be approved unless it was in good faith, and for the 2. -: —: —. reasonable value of the property. • It does not necessarily follow that, because the sale was to the sons of the receiver, it was therefore in bad faith, or for any fraudulent purpose. The consideration paid was in excess of the appraisement made by three disinterested gentlemen, whose integrity and qualifications are not questioned, and in excess of the estimate put upon the property by the appellee at a time when its value was no greater. It satisfactorily appears that the property was sold for its full value. In view of the unsalable character of the *126property; the fact that it was about to be lost to the partnership by the tax sale; that it was sold for full value, with the express consent of the appellants, and the implied consent of the appellee, in good faith and without fraud, — we think the sale and conveyances should have been approved. If there was anything to show that the parties interested would be benefited by another sale, or that they are in any respect prejudiced by the present one, we might reach a different conclusion ; but, believing that a confirmation of this sale is for the best interest of all parties concerned, the judgment • of the district court must be reversed, and a decree entered approving said sale, and the conveyances made thereunder. Reveesed.