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Opinion of the Court.

there is no opportunity for objections before the master, or any correction by him of his errors or any reconsideration of his opinion. The course pursued in this case in reference to the confirmation was the correct practice; an order nisi followed if no objections were taken in time by an order of confirmation. In 2 Daniell's Chancery Pleading and Practice, page 1274, 4th Am. ed., the author says: "After the report has been filed, and an office copy taken by the purchaser, he must, at his own expense, apply to the court by motion, that the purchase may be confirmed. This motion requires no previous notice, and the order made upon it will be that the purchase may be confirmed nisi; i.e. unless cause is shown against it within eight days after service of the order. The purchaser must, at his own expense, procure an office copy of this order from the registrar, and he may serve it on the solicitors for all the parties in the cause. If no cause is shown within the eight days, the purchaser must, at his own expense, apply to the court to confirm the order absolutely, which will be ordered of course, on the production of an affidavit of the service of the order nisi, and a certificate of no cause having been shown." Ard, again, on page 1305, in which he 'thus notes the reason of the rule in respect to a report of sale: "With respect to which it is to be observed, that the object of requiring this report to be confirmed is not to enable the parties to bring the decision of the master under the review of the court, but to afford time between the service of the order nisi and the absolute confirmation of the report, to others to come in and open the bidding, so as to secure the sale of the estate to the best possible advantage." And in 8 American and English Encyclopædia of Law, p. 254, the practice is thus stated: "The master or commissioner making the sale should report his action to the court, to the end. that the sale may be confirmed. A motion to confirm the sale, with notice to the parties adversely interested to the confirmation, should be made. Confirmation nisi will be ordered, to become absolute within a designated time, unless cause is shown against it. If cause is not shown it stands confirmed." See also Mayhew v. West Virginia Oil Co., 24 Fed. Rep. 205,

Opinion of the Court.

215, and as to the practice in the state courts of Michigan, Jennison's Ch. Pr. p. 157, Rule 79. We think, therefore, that this objection also must be overruled.

The remaining objections made by the appellant can be more conveniently considered in connection with the appeal of Alfred A. Marcus. The first appearance of Marcus in this litigation was in this wise: The sale was made on the 24th of January, and at the village of Houghton, county of Houghton, and State of Michigan. The 24th was Saturday, and late in the evening of January 23 the master received this dispatch:

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"TO PETER WHITE, special master:

"Please postpone sale of Pewabic mine; just found out the sale on our Jewish Sabbath; never notified of sale until to-day. We hold nearly three thousand shares. Our Jewish friends in London will buy the mine. There are other Jewish buyers who will not attend sale on Saturday; will most cheerfully pay all expenses for postponement; if not, please announce at sale 'we will protest against this legality.'

"ALFRED A. MARCUS."

On Monday, the 26th, he received the following:

"BOSTON, MASS., January 26, 1891.

"To PETER WHITE, special master:

"You ignored my dispatch; sold the Pewabic mine. I protest against the sale, as you were bound to do all to get the highest price. I claim the right now to bid seven hundred twenty-one thousand dollars cash, being twenty thousand dollars more than bid at the illegal sale. I shall claim the mine, being the highest bidder, and protest against any transfer being made to any one except myself, and shall hold you personally responsible.

"ALFRED A. MARCUS."

In his report of sale he gave copies of these dispatches, simply adding that the sender of the dispatches was wholly

Opinion of the Court..

unknown to him, and that he paid no attention whatever to them. On the 3d day of March, the day after the sale had been confirmed, and more than five weeks after the sale had been made, Marcus filed a petition for leave to intervene, in which he alleged that "he is the owner of 3017 shares of the capital stock of the Pewabic Mining Company; that he, for himself and other parties, whose names he is willing to disclose, was desirous and fully intended to be present or represented at the sale of the property of the said Pewabic Mining Company by the special master duly appointed by this honorable court in the above-entitled cause; that he was ready to and would have bid at said sale and paid a large amount of money for the property of said company advertised for sale by said special master; that on January 23, 1891, that being the day before the sale of said property took place, your petitioner discovered for the first time that the sale was advertised for Saturday, January 24; that thereupon and immediately your petitioner, using all haste and dispatch possible, sent by telegraph a message to the said special master, a copy whereof is hereto annexed, marked A, asking to have the sale of said property postponed, at his own expense, for the reason that he was never notified of the sale until said date, and that said sale was advertised to take place on the seventh day of the week, which is the Sabbath of your petitioner, and upon which day he is forbidden by his creed to do any business." He further alleged that the master ignored the dispatch and sold the property for an inadequate sum, and for much less than it was worth; that his offer on January 26 was bona fide; that he was willing and ready to pay all the expenses of a resale; and that he would start with a bid not less than $800,000, afterwards by amendment raised to $900,000, and would give a bond with satisfactory sureties for his good faith and ability to carry out his offer. On the presentation of this petition the parties were ordered to show cause why it should not be granted. It is a singular fact that his first appearance in the case was the day before the sale, and his first appearance in court the day after the confirmation. If it had all been planned, he could not have

Opinion of the Court.

been more opportunely ignorant before and more accurately late after. To this order to show cause the parties appeared, testimony was taken, and a hearing had. It is worthy of note that, outside of the petition of Marcus, there is no evidence of his ownership of stock, and nothing in that tending to show how or when he obtained title to that which he claimed to own; neither is there anything to show what steps he had taken, prior to the sale, to inform himself of what was going on in the affairs of the company. It would seem from the multitude of judgments and attachments against him appearing on the records of the courts in Boston, that he was of no financial responsibility. On the other hand, it is also true that the affidavits of several responsible parties were presented, showing that Marcus was a man of large transactions; that he was an orthodox Jew, who did no business on Saturday; and that the parties named were willing to give the proffered bond if a resale were ordered. It would not be a strained inference from the testimony that Marcus was acting for others, and was really put forward with the idea of introducing a new factor into the litigation. But we deem it unnecessary to inquire into the real character of this intervention. It is enough that it comes too late. Surely no one would suppose that an officer having charge of the sale of property of such value, a sale made at the end of prolonged litigation, should at the last moment, in response to a dispatch from a stranger, postpone the sale. The master's action was unquestionably proper, and if the party desired the intervention of the court, his duty was to apply at once and not wait until after confirmation; for then the rights of the purchaser are vested, and something more than mere inadequacy of price must appear before the sale can be disturbed. Indeed, even before confirmation the sale would not be set aside for mere inadequacy, unless so great as to shock the conscience. See Graffam v. Burgess, 117 U. S. 180, 191, where the matter is discussed at some length by Mr. Justice Bradley. As the price bid by the appellees, and - at which the property was struck off to them, was about $580,000 in excess of the upset price, it is hardly necessary to say that there is no shocking inadequacy of price.

Syllabus.

In conclusion, we may add that, after reviewing all the facts disclosed by these records in the light of the prior history of the litigation, it seems to us that the equities of the case are decidedly with the appellees, and the decrees will be Affirmed.

MR. JUSTICE GRAY did not hear the argument and takes no part in the decision of this case.

GALLIHER v. CADWELL.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF WASH

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Laches does not, like limitation, grow out of the mere passage of time; but it is founded upon the inequity of permitting the claim to be enforcedan inequity founded upon some change in the condition or relations of the property or the parties.

G. made a homestead entry in Washington Territory in 1872. He died in 1873. The entry was cancelled in 1879 for want of final proof within the seven years. In 1880 the act of June 15, 1880, was passed, 21 Stat. 236, c. 227, authorizing persons who had made homestead entries to entitle themselves to the lands on paying the government price therefor. G.'s widow made application for a patent under this act, and her application was rejected. In 1881 W. entered the tract, and in 1882 received a patent for it. In 1884 the widow made an application for a rehearing under the act of 1880, and her application was rejected in the same year. The land having greatly increased in value by the growth of the city of Tacoma, C., claiming through conveyances from W., filed a bill to quiet title, making the widow a defendant. The widow answered setting up as a prior right the homestead entry. Held,

(1) That it was doubtful whether the widow of G. was entitled to the benefit of the act of June 15, 1880: but that, without deciding that question,

(2) In view of the rapid and enormous increase in value of the tract, and her knowledge of all the circumstances, which must be assumed from her near residence to the property, a court of equity would not disturb a title legally perfect, created by the General Government after a decision adverse to any reservation of the homestead right, and on the faith of whieh costly improvements had been made.

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