directed the commissioner 218 to make a deed to the latter upon payment of said sum of five thousand dollars.

The fairness and regularity of the sale is unimpeached by evidence. Appellees introduced no proof to establish the market value of the land except the offer of appellee Cone to pay five thousand dollars for it, and appellant introduced four witnesses who testified that the fair market value of the land at the time of the sale was three thousand five hundred dollars to four thousand dollars.

The questions which we are called upon to decide are, in the first place, whether an appellate court should under any circumstances disturb the order of a chancery court refusing to confirm a sale by its commissioner, and, second, whether the chancellor is sustained by the evidence in his conclusion that the price offered by appellant was grossly inadequate.

In the case of Colonial etc. Mtg. Co. v. Sweet, 65 Ark. 152, 67 Am. St. Rep. 910, 45 S. W. 60, this court affirmed the order of the chancellor confirming a sale of land for two thousand five hundred dollars, and refusing to accept an advance bid of three thousand nine hundred and eightyone dollars and sixty-seven cents made by one of the parties to the original decree. The proof was conflicting as to the market value, and the court found that the price at which the sale was made-two thousand five hundred dollars was a fair one. The court quoted with approval language of the supreme court of the United States in Graffam v. Burgess, 117 U. S. 180, 6 Sup. Ct. Rep. 686, 29 L. ed. 839, as follows:."In this country, Lord Eldon's views were adopted at an early day by the courts, and the rule has become almost universal that a sale will not be set aside for inadequacy of price, or unless the inadequacy be so great as to shock the conscience, unless there be additional circumstances against its fairness; being very much the rule that always prevailed in England as to setting aside sales after the master's report had been confirmed."

It may be therefore treated as settled in this state, following the rule adopted by a large majority of the American courts, that, in the absence of fraud, irregularity or misconduct affecting the validity of a judicial sale, the sale will not be set aside and confirmation refused in order to allow the bid of the purchaser to be advanced by another person. It is equally well settled, here and elsewhere, that a judi

cial sale will not be set aside on account of mere inadequacy of price, unless the inadequacy be so gross as to shock the conscience or 219 raise a presumption of fraud or unfairness: Nix v. Draughon, 56 Ark. 240, 19 S. W. 669; Fry v. Street, 44 Ark. 502; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Graffam v. Burgess, 117 U. S. 180, 6 Sup. Ct. Rep. 686, 29 L. ed. 839; Parker v. Bluffton Car Wheel Co., 108 Ala. 140, 18 South. 938; Stump v. Martin, 9 Bush (Ky.), 285; Allen v. Martin, 61 Miss. 78.

The chancellor found in this case that the price was grossely inadequate, but his finding was contrary to the deeided preponderance of the evidence. Four witnesses introduced by appellant testified that the amount of his bid was a fair market value of the land. Some of them testified

No other witness tes

that it was above the market value. tified on the subject. But conceding that the advance bid. of appellee Cone fixed the value of the land at five thousand dollars, we do not think that establishes such gross inadequacy in the price as, of itself, to afford grounds for setting aside the sale.

Courts have adopted, as a wise public policy, the rule that confidence in the stability of judicial sales should be maintained, so that competitive bidding may be encouraged by the assurance that, in the absence of fraud or misconduct, the highest bidder will be accepted as the purchaser of the property offered for sale. And while it is often said that the accepted bidder at such a sale acquires no independent rights until the sale be confirmed by the court, and that the court may exercise a discretion in either confirming or rejecting the sale, yet this discretion must be exercised according to fixed rules, and not arbitrarily, and the bidder has the right to insist upon its exercise in this manner only. He can insist that his purchase be not set aside by the court upon reasons which are condemned.

"Considerations of public policy demand," say the court of appeals of Kentucky, "that some confidence should be had in the stability of judicial sales, so as to invite competition in bidders by an assurance to men of fidelity and promptness in their business habits that the chancellor is at least bound by the same rules of fair dealing that such men are in their business transactions with each other": Am. St. Rep., Vol. 113—10

Stump v. Martin, 9 Bush (Ky.), 285. And the appellate court in that case reversed the decision of the lower court refusing to confirm a sale and accepting the advanced bid of another person.

In a similar case the supreme court of Mississippi, on 220 appeal prosecuted by the purchaser, reversed the ruling of the chancellor refusing to confirm a sale because the bid had been advanced: Allen v. Martin, 61 Miss. 78. The court, by Mr. Justice Cooper, said: "Until confirmation, the sale is in fieri and subject to the control of the court, but this control is a judicial, not an arbitrary, one, and confirmation must follow unless there exist some reason recognized by law as warranting a refusal to confirm. A bidder at a sale in chancery assumes certain obligations which he must discharge, he submits himself to the jurisdiction of the court, and becomes a party to the cause in which the sale has been decreed, and he may be compelled to stand by the offer he has made. On the other hand, he acquires certain legal rights which are to be as much protected and enforced as are other rights of other persons. He is entitled not only to ask but to have confirmation if there is no reason valid in the law for refusal."

"When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the court is pledged to ratify and perfect it": Latrobe v. Herbert, 3 Md. Ch. 375.

The New Jersey court of errors and appeals, in the case of Morrisse v. Inglis, 46 N. J. Eq. 306, 19 Atl. 16, reversed the decree of the chancellor setting aside a sale made by the master because the bid of the purchaser was advanced by another. The court said: "There is a uniform current of decisions settling that official sales will not be opened on mere representations that more may be obtained for the property. This well-known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity by public outery to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and, at least, when the price offered is not unconscionably below the market value of the property. Nothing could more evidently tend to

discourage and prevent bidding than a judicial determination that such a bidder may be deprived of the advantage of his accepted bid, whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial." To the same effect are Comstock v. 221 Purple, 49 Ill. 158; Quigley v. Breckenridge, 180 Ill. 627, 54 N. E. 580; Page v. Kress, 80 Mich. 85, 20 Am. St. Rep. 504, 44 N. W. 1052.

If the chancellor had, under the proof, approved this sale, our duty to affirm his decision would be plain, for it is undisputed that the sale was regularly made in accordance with the order of the court, and was free from any fraud or misconduct, and the evidence shows that the price bid was not inadequate.

That being true, the purchaser had the right to insist upon a confirmation of the sale, and it is equally our duty to protect that right and to reverse a decision of the chancellor denying it. In other words, the decision refusing to confirm the sale under the proof presented by the record cannot be said to be proper exercise of the discretion of the court, and must be reversed.

The decree is therefore reversed and the cause remanded, with directions to confirm the sale to appellant upon compliance by him with the terms of his bid.

OPENING JUDICIAL SALES FOR ADVANCED BIDS.

I. English Practice of Opening Chancery Sales, 147.

II. American Courts Adopting English Practice.

a. In General, 148.

b. With What Limitations, 148.

III. Courts Rejecting English Practice.

a. In General, 150.

b. For What Reasons, 150.

I. English Practice of Opening Chancery Sales. It was formerly the rule in England in chancery sales, that until confirmation of the master's report, the bidding would be opened upon a mere offer to advance the price ten per centum. So much dissatisfaction, however, was expressed with this practice, as calculated to impair the confidence of bidders and thereby diminish rather than increase the proceeds of judicial sales, that it has been abolished by parliament: Graffam v. Burgess, 117 U. S. 180, 6 Sup. Ct. Rep. 686, 29 L. ed. 839. "In England," to quote from Blackburn v. Selma R. R. Co., 3 Fed. 689, "before the new practice was adopted, a third person could, upon no other ground than that he offered an advance of price, pro

Ivided it were a considerable advance, intervene and set the sale aside, he paying all the expenses which the previous purchaser had incurred, and the property was put up for sale upon the advance price. There was no rule as to the amount of the advance required, and no one had any right to open the biddings, since it was always in the discretion of the court to grant the application or refuse it."

II. American Courts Adopting English Practice.

In General. The old English practice has obtained some foothold in America, and in quite a number of our states it is not uncommon to open judicial sales for perhaps no other reason than that an advance bid has been made for the property: Hinson v. Adrian, 92 N. C. 121; Childress v. Hart, 32 Tenn. (2 Swan) 487; Wilson v. Shields, 62 Tenn. (3 Baxt.) 65; Reese v. Copeland, 74 Tenn. (6 Lea) 190; Dupuy v. Gorman, 77 Tenn. (9 Lea) 144; Todd v. Gallego Mills Mfg. Co., 84 Va. 586, 5 S. E. 676; National Bank v. Jarvis, 28 W. Va. 805. "All the cases agree," to quote from the supreme court of Virginia, "that the court must sell at the best price obtainable, and when a substantial upset bid, well secured and safe, for ten per cent advance, is put in before confirmation, it is as much a valid bid as if made at the auction. This is the settled law of this court, and will doubtless so remain until the legislature shall otherwise provide by law, as has been done by the English parliament': Moore v. Triplett, 96 Va. 603, 70 Am. St. Rep. 882, 32 S. E. 50.

"We think it best to announce, ," said the supreme court of Tennessee in Click v. Burris, 53 Tenn. (6 Heisk.) 539, "as a rule for the future action of this court, but not to govern sales which have already been made, that we will adopt the English practice, and when it appears that an increased bid of ten per cent has been offered, the bidding will be opened. This rule will be applied in cases where the proposal to open the biddings is made at the term of the court to which the report of sale is made, and where it appears that notice of the intention to make the offer has been given to the first bidder, or purchaser; and where the rule is applied, the property will be put to sale at the increased bid, and with open competition to all other bidders; and when the resale is made, the biddings will not again be opened, except under extraordinary circumstances."

b. With What Limitations.-But even in those jurisdictions where the practice prevails of opening a judicial sale upon the making of an advanced bid, the court will not open a sale to receive such bids as a matter of course, but will exercise a sound discretion in the premises, and perhaps reject the offer of an advance and confirm the sale. The exercise of this discretion in rejecting a bid will not, in the absence of special circumstances, be reviewed by an appellate court: Owen's Admr. v. Owen, 24 Tenn. (5 Humph.) 352; Johnson v. Quarles, 44 Tenn. (4 Cold.) 615; Moore v. Triplett, 96 Va. 603, 70 Am. St. Rep. 882, 32 S. E. 50; Blackburn v. Selma R. R. Co., 3 Fed. 689. In the last case cited it is held that one who was a bidder at a judi