The opinion
On Petition to Rehear.
The petitioner, James S. Browning, feels much aggrieved because the court ordered the original sale of the property involved here confirmed; that is, because the court declined to order a resale of the property to give the bidder an opportunity to escape from his *344 incurred obligation. This question was discussed in the original opinion and determined, but the court will briefly discuss the facts again.
When the case was originally before this court, it ordered a sale of the property subject to the leasehold estate existing upon the property, and the case was remanded to carry out this sale. An order of sale was made in obedience to the decree. The property was offered for sale in due course when the original complainant Jane Browning and Reba Koontz became the purchaser at the price of $40,500 and they complied with the terms of the sale. Thereafter, the defendant, James S. Browning, Jr., appeared and entered a raised bid for the property in the sum of $41,500, and complied with the terms of the decree, but he attempted to place a condition upon his bid, in effect amending the decree of the court and stating that he bid on the sole condition that he was taking the property free and clear of all encumbrances, especially the lease referred to, and to which the sale was ordered made subject. He construed the purchase of the fee to create a merger of the leasehold and fee estate, notwithstanding that in the decree the court had ordered the property sold subject to the lease. This was a mistaken conclusion of the law hardly justified under the terms of the decree of sale. His bid released the original purchasers and their sureties, and had he petitioned to be relieved of his bid because of his mistake of law, he would have had no equitable standing to open the property up for a resale to bring such sum as may thereafter be bid for it. When the court orders a sale of property under its decree, the bidders are not at liberty to construe that decree favorable to themselves, and if their construction is not maintained, to have their bid set aside. A purchaser must stand upon an equal footing with all bidders taking an equal chance upon the construction of a decree of sale as favorable to the purchaser. The fact that the position taken by the defendant in attempting to make a conditional bid upon the property frightened the complainants and they instituted proceedings for a construction of the decree of sale prior to the confirmation does not affect the equity of the defendant. If he were not entitled to set the sale aside because of his mistake of law, or because his bid was speculative, he cannot complain if he does not reap the same results through the action instituted by the complainants.
This property was sold in September, 1938, for $41,500, and the interest upon this sum for one year is considerable. So, if the court orders a resale this interest is lost by the complainants and gained by the defendant, even in the event he bid the original bid of $41,500, and he does not ask that the sale be confirmed to him at this date at this sum, losing to the parties only the interest, but he wants the sale reopened, giving him an opportunity to put in even a lesser bid than either of the two bids heretofore made, which procedure would work greatly to the detriment of the complainants and in favor of- *345 the defendant, all because he undertook to construe this court’s der cree and to bring about the long delay in the final • determination of the matter. The complainants, the original bidders, acquired rights under their purchase that could not be taken away from them by an unwarranted legal assumption on the part of the defendant and the avoiding of the sale and the loss of the interest upon the purchase price at the time and through the long delay incident to the prosecution of this claim through the Appellate Court.
After the case was determined, notwithstanding the issue was simple and had been discussed and disposed of in the original decree, the petitioner applied for and obtained time to file a motion to rehear, which time was granted by a member of this court, and by the petitioner’s negligence, the matter has again been delayed for a long time. To grant the petitioner relief would entail a great damage on the complainants, perhaps causing the loss of several thousand dollars if the complainants are not now in a position to protect their interests, and the defendant only raised the bid $1,000, so this measures his injury growing out of his unfounded assumption that he was taking the fee to the estate, and his making the conditional bid accordingly; He makes no offer to do equity and does not show himself entitled to any equitable relief. Had he not raised the bid, the complainants would have been obligated to pay interest upon the purchase price from the date of their purchase, and we see no reason why the defendant should be relieved of a like obligation under his bid. At the' time the property was worth the sum bid by the complainants, and they complied with the order of court and were entitled to the prop-, erty, unless the bid was raised, and in that event they were entitled to interest upon the raised bid from the date of the raised. The defendant cannot escape the obligation incurred by his bidding, because he thought the decree of sale should be construed in a way favorable to him.
The court finds no merit in the petition to rehear and it is overruled with costs.
Ailor and MeAmis, JJ., concur.