Zion Baptist Church v. Estate of Willie Peay

PRESENT: Carrico, C.J., Compton,1 Lacy, Hassell, Keenan, and
Koontz, JJ., and Stephenson, Senior Justice
TRUSTEES OF ZION BAPTIST CHURCH
OPINION BY
v. 	Record No. 990405 	SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
March 3, 2000
CONSERVATORS OF THE ESTATE
OF WILLIE PEAY, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
The principal issue in this appeal is whether the trial
court erred in refusing to set aside a judicial sale when the
building on the subject property was destroyed by fire shortly
after the entry of the decree confirming the sale.
I
On June 20, 1995, the trial court entered an order,
pursuant to Code § 26-68, appointing Phyllis Jackson, Greta
Mosley, and Lesse Wright co-conservators of the estate of Willie
Peay. 	The co-conservators are children of Willie Peay, who had
not been seen or heard from since August 18, 1994.
On October 17, 1996, the trial court entered a decree
appointing a special commissioner to sell various properties
owned by Willie Peay in the City of Petersburg, including that
located at 220 Halifax Street. 	In accordance with the decree of
1 Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.

appointment, the special commissioner duly advertised the sale
of the properties and solicited sealed bids.
Thereafter, Robert L. Bullock, Jr., submitted a bid in the
amount of $92,600 for the property located at 220 Halifax
Street. 	By the trial court's decree entered December 30, 1996,
the special commissioner's report was confirmed, and Bullock's
bid was approved and accepted. 	Bullock, however, failed to pay
the purchase price, and, by decree entered July 10, 1997, the
court ordered a resale of the property. 	The decree also
provided that Bullock shall be personally liable for (a) all
expenses otherwise chargeable to the estate of Willie Peay in
connection with the resale of the property and (b) the
difference between (i) the bid submitted by Bullock and (ii) the
amount actually paid for the property as a result of the resale.
The decree further provided that, if the amount paid as a result
of the resale exceeded Bullock's bid and the costs of resale,
Bullock shall be entitled to receive the excess amount paid.
Pursuant to the July 10, 1997 decree, the special
commissioner again advertised the sale of the property,
requesting sealed bids. 	Zion Baptist Church (the Church)
submitted a bid of $110,100 for the property, and, by a decree
entered September 9, 1997, the trial court confirmed the special
commissioner's report and approved and accepted the Church's
bid.
2

On September 10, 1997, before sunrise, a fire destroyed the
building at 220 Halifax Street, and the Church submitted a new
bid of $23,000 "for the land once it has been cleared."2 The
special commissioner submitted a report recommending that the
court accept the bid because the bid "appears to be in the best
interest of the Estate of Willie Peay." 	The trial court,
however, declined to approve the report. 	Subsequently, the co-
conservators petitioned the court to conduct a hearing to
resolve the legal issues arising from the unfortunate
circumstances surrounding the sale of the property.
Following a hearing, the court held that, "[w]hen the
[Church's] bid was accepted by the Court on September 9, 1997,
the Church became vested with full equitable title;" therefore,
the Church must bear the loss occasioned by the fire and the
cost of clearing the land.3
II
The Church contends that the trial court erred when it
failed to give notice to the Church of its intention to accept
the Church's bid. 	The Church asserts that failure to give such
2 A City Housing Code Official determined that the damaged
structure was unsafe and requested its removal or repair. 	The
structure was demolished and the debris was removed at a cost of
$9,600.
3 The trial court also held that the Church was entitled to a
$44,500 credit against the purchase price for insurance proceeds
that were to be paid into the court.
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notice violated its procedural due process rights. 	We do not
agree.
As directed by the trial court, the special commissioner
published a notice of sale which, in pertinent part, provided
the following:
Persons interested in purchasing [the property]
should submit written, sealed bids to [the special
commissioner] . . . . [The property] is being sold in
"as is" condition. . . . Bids shall be subject to the
approval of the Court, and the Court shall have the
authority to accept or reject any or all bids. 	The
successful bidder shall be required to pay the entire
purchase price bid . . . at time of settlement, which
shall be made within thirty days following
notification given by the Special Commissioner that
such person is the successful bidder.
The notice of sale makes clear that the Church's bid was
subject to the trial court's approval and that the court was
authorized to accept or reject the bid. 	The notice of sale also
makes clear that the Church, if successful, would be notified by
the special commissioner of the court's acceptance of its bid
and would be required to proceed to settlement. 	Nothing in the
notice of sale suggests that the successful bidder would be
given notice prior to the entry of a decree of confirmation.
Thus, we hold that the Church had received all the notice due
process required.4
4 We reject the Church's argument that the court had no power to
enter the decree "in vacation" without notice. 	Code § 8.01-445
provides, in part, that "[t]he distinction of what a court may
do in term as opposed to vacation is hereby abolished."
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III
The Church further contends that the trial court erred in
refusing to set aside the September 9, 1997 decree of
confirmation after learning that the building on the subject
property had been destroyed by fire. 	The Church asserts that,
in refusing to set aside the decree, the Court abused its
discretion.
In the course of a judicial sale, "[u]pon the entry of a
decree of confirmation[,] the transaction becomes a completed
contract of sale." 	Staples v. Somers, 196 Va. 581, 588, 84
S.E.2d 523, 527 (1954).
Until the sale has been confirmed . . . the bidder is
not considered as a purchaser, and he is therefore not
liable for loss to the property, by fire or otherwise,
. . . nor is he compellable before confirmation to
complete his purchase. 	But as soon as the sale is
absolutely confirmed, then the contract becomes
complete; the bidder, by the acceptance of his bid,
becomes a purchaser . . . and he may be compelled by
the process of the court to comply with his contract.
Va. Fire & Marine Ins. Co. v. Cottrell, 85 Va. 857, 861, 9 S.E.
132, 133 (1889); accord Hurt v. Jones, 75 Va. 341, 347 (1881).
As a general rule, after a judicial sale has been confirmed
by a court, the court will not set aside the decree of
confirmation "except for fraud, mistake, surprise, or other
cause for which equity would give relief, if the sale had been
made by the parties in interest, instead of by the court."
Berlin v. Melhorn, 75 Va. 639, 641 (1881). 	Additionally, from
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the time of the execution of a valid contract of sale to the
time a deed is executed and delivered, "[w]hatever loss may fall
on the [property] is the loss of the purchaser [and] [w]hatever
advantage may accrue to it is his gain." 	This doctrine is
firmly established and a law of property upon which "[t]here can
be no grounds of controversy." 	Reynolds v. Necessary, 88 Va.
125, 129, 13 S.E. 348, 350 (1891).
In the present case, the trial court gave careful
consideration to the law and the evidence and, in the exercise
of its discretion in the light of well-established law,
concluded that it should not set aside its decree of
confirmation. 	Although the trial court noted that "arguably the
result is distasteful," its decision is supported by the law,
and we cannot say that the court abused its discretion in
refusing to set aside its decree of confirmation.
Accordingly, the trial court's judgment will be affirmed.
Affirmed.
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