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price, however, is not of itself sufficient cause, in an ordinary case, for setting aside the sale.1 But gross inadequacy of price paid, the deed acknowledged, recorded the judgment and much less than and delivered to the purchaser, and the value of the property; afterward possession of the premises taken by the plaintiff moved the court to have him, the court has no power, upon a the sale confirmed; and the defendant rule to show cause, to set aside the sale then tendered the amount of the judgand compel the purchaser to deliver up ment and moved the court that the sale the deed to be cancelled.

Evans v. be set aside; and the plaintiff and purMaury, 112 Pa. St. 300. See also chaser then jointly moved the court to Cooper v. Wilson, 96 Pa. St. 409. permit the purchaser to increase his bid

So in Illinois, after the deed for real up to the amount of the judgment, and estate sold under execution has been to permit that amount to be credited on made, the court has no power, on mo- the judgment; at that time the land betion, to set aside the deed or set aside ing worth nearly twice the amount of the sale. It must be impeached, if at the judgment. iteld, that the motions all, in equity, unless there was no judg- of the plaintiff and purchaser should be ment or execution, or the court had no sustained, and the motion of the dejurisdiction to render the judgment. fendant should be overruled; that neither Section 65 of the Practice act has no the manner of service of summons, nor application to motions to set aside ju- the want of the defendant's actual dicial sales, but refers to writs of execu- knowledge of the rendition of the judytion, replevin bonds and the like. Jen- ment, nor the fact that the purchaser kins r. Merriweather, 109 Ill. 647. was not an entire stranger to all the

In Kansas, a sheriff's sale of real es- proceedings in the case, nor the fact tate was set aside by the court, on mo- that the property was sold for much tion of one of the parties, upon facts less than its value, nor the fact that the ascertained and proved by evidence property at the time of the confirmaother than the papers and proceedings tion of the sale was worth much more already of record in the case, and with than the amount of the judgment, nor out notice to and in the absence of one all together, will authorize the sale to of the parties interested in the sale. be set aside. McGeorge 7. Sease, 32 Held, that the order of the court, setting Kan. 387. aside the sale without notice, was In Indiana, a sale of land under an

under such circumstances. alias writ will not be set aside as void Baker v. Hall, 29 Kan. 442.

merely because the writ was improviAnother interesting case was recently dently issued by the clerk without the decided by the supreme court of Kan- plaintiff's order. And in general one

A judgment was rendered against claiming in the character of a judgthe defendant on a promissory note and ment creditor cannot avail himself of i real estate mortgage, in his absence mere irregularities to set aside a conand without his knowledge, in pursu- summated sale. Johnson v. Murray, 112 ance of a service of summons made by Ind. 154; S. c., 2 Am. St. Rep. 174. the sheriff, who left a duly certified copy The doctrine of estoppel will often thereof with his wife at his usual place prevent a party from having a sale set of residence; the property was ordered aside where he has acquiesced therein, to be sold; at the time when the judg- delayed too long or received the benefits ment was rendered the land was worth thereof. See Critchlow v. Critchlow but little more than the judgment; af- (Pa.), 11 Atl. Rep. 235; Presstman 1. terward the defendant returned home Mason (Md.), 11 Atl. Rep. 764; Walet and had notice of the judgment; an v. Haskins, 68 Tex. 418; s. c., 2 Am. St. order of sale was then issued; the de. Rep. 501. See also EQUITY; ESTOPPEL. fendant did not pay

tender the 1. Graffam v. Burgess, 117 U. S. 18o; amount of the judgment or any part Brittin v. Handy, 20 Ark. 381; s. c., 73 thereof, and did not attend the sale or Am. Dec. 497; Parker v. Glenn, 72 Ga. attempt to make the property sell for 637; Weaver v. Lyon (Pa.), 5 Atl. Rep. what it was worth, and the property 782; Coolbaugh 1. Roemer, 32 Minn. was sold to

a person not an entire 445; Beckwith v. Kings Mt. etc. Co., 87 stranger to all the proceedings in the N. Car. 155; Hunt 1'. Fisher, 29 Fed. case, but not a party to the suit and hav. Rep. 801 and note; Littell v. Zuntz, 2 ing no interest in the judgment, for a Ala. 256; s. C., 36 Am. Dec. 415. sur much less than the amount of Thus a sheriff's sale on execution of

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has in many cases been treated as a badge of fraud, and, when coupled with other suspicious circumstances, may be sufficient cause for setting aside the sale.2

Any party in interest, usually the plaintiff, the defendant or the purchaser, may have the sale vacated for good cause when he has been prejudiced thereby.3 But a stranger in interest who is not injuriously affected by the sale cannot have it vacated.4 Nor real estate of the alleged value of $6,400, knowledge of the day of sale, and the subject to a mortgage of $4,000, for the attorneys of the creditor testify they sum of $5, will not be set aside merely had no notice thereof, and the attorneys on the ground of inadequacy of price. are not present at the sale, and the real Kerr v. Haverstick, 94. Ind. 178. So estate is bid in by one of the judgment held where $165 was bid for property debtors under the direction of his wife, worth $600. Sowles v. Harvey, 20 Ind. for and in her name, at a grossly inade. 217; s. C., 83 Am. Dec. 315. And see quate price, the district court is justified especially O'Callaghan v. O’Callaghan, in setting the sale aside.

Weir v. 91 Ill. 228. But compare In re Palmer, Travelers' Ins. Co., 32 Kan. 325. 13 Fed. Rep. 870; Blackburn v. Selma Great inadequacy of price at a ju. R. Co., 3 Fed. Rep. 689.

dicial sale of real estate requires only Affidavits which state simply that the slight circumstances of unfairness in the lands "sold for greatly less than their conduct of the party benefited by the value," not stating the value and price, sale to raise a presumption of fraud. or other facts from which these can be And if the inadequacy of price at a sale ascertained, being merely the statement on an execution be so gross as to shock of opinions, are not sufficient to set the conscience, or if in addition to gross aside the sale. Holly 7. Bass, 68 Ala. inadequacy the purchaser has been 206.

guilty of unfairness or has taken any 1. See Fisher v. Shelver, 53 Wis. undue advantage, or if the owner of the 498; Ames v Gilmore, 59 Mo. 537; Ful- property or the party interested in it ler v. Brewster, 53 Md. 358, 361; Ap- has been for any other reason misled person v. Burgett, 33 Ark. 338; Stevens or surprised, then the sale will be rev. Dillman, 8. III. 233; Loring v. Dun- garded as fraudulent and void, and the ning, 16 Fla. 119.

party injured will be permitted to re2. Kloepping v. Stellmacher, 21 N. deem the property sold. Graffam v. J. Eq. 328; Fletcher v. McGill, 110 Burgess, 117 U. S. 180. Ind. 395; Wright v. Dick (Ind.), 19 N. Where real estate is sold at sheriff's E. Rep. 306; Cubbage '. Franklin, 62 sale, a few minutes prior to the time at Mo. 364; Morris v. Roley, 73 Ill. 462; which the sale was advertised to take Pearson v. Hudson, 52 Tex. 352; Fitz- place, and at a grossly inadequate price, gerald v. Kelso (Iowa), 29 N. W. Rep. the sale may be set aside on motion of 943; Bean v. Hoffendorfer (Ky.), 2 S. the defendant. Pickett v. Pickett, 31 W. Rep. 556; Weir 7'. Travelers' Ins. Kan. 727. Co., 32 Kan. 325; Lee v. Davis, 16 Ala. See also, for a collection of many 516; Beckwith v. Kings etc. Co., 87 N. other authorities upon this subject,

Debts of DE EDENTS, vol. 5, p. 301; “Inadequacy of price is not sufficient Subtit. Restra ning and Setting Aside. per se to set aside a sale, unless it is so 3. Freeman on Executions, 305; gross as, when combined with other Galbreath v. Drought, 29 Kan. 711; circumstances, to amount to fraud; but Cravens v. Wilson, 48 Tex. 324; U. S. if it be great, it is of itself a strong cir- v. Vestel, 12 Fed. Rep. 59. cumstance to evidence fraud; and this Thus holders of subordinate liens or is true where it is attended by any those to whom property is transferred other fact showing the transaction to subject to the lien of the execution may, be unfair or unjust or against good con- in proper cases, have the sale vacated. science.” Parker 7. Glenn, 72 Ga. Harrison v. Andrews, 18 Kan. 535; 637.

Cravens v. Wilson, 48 Tex. 324. Com. Where an order of sale is issued pare Frink v. Morrison, 13 Abb. Pr. without the authority or knowledge of (N. Y.) So. the judgment creditor or any of his 4. Gilmer, Matter of, 21 La. An. 589, attorneys, and the creditor has no and Louisiana cases there cited; Laird

Car. 155.

can one who retains, and will not surrender, its benefits. 1 One who seeks to set aside a sale should act promptly, lest innocent parties should acquire rights, or he should be deemed to have acquiesced therein. And notice of the motion or proceeding to vacate a sale should be given to all parties in interest.3

VI. REDEMPTION-1. Generally-What Law Governs.— The right to redeem from an execution sale is purely statutory.4 As a general rule, the law in force at the time of the sale will govern and determine the right to redeem ;5 but in case of a sale upon foreclosure of a mortgage, it has been held that the right of redemption existing at the time of the execution of the mortgage cannot be taken away by subsequent legislation. And where the liability which results in the judgment and execution under which the sale is made, occurs in one State, and the sale is made in another, the right to redeem is controlled by the law of the forum, or State in which the judgment is rendered.?

Where real estate is sold separately in different parcels, it may be redeemed separately.8 The right to redeem is, in a sense, a personal right and follows the judgment debtor even though he may have sold the land after the lien of the judgment or execution attached.9

cases

1. Laird, 4 Pac. L. Jour. 474; Glassell “There are two rights of redemption, v. Wilson, 4 Wash. (U. S.) 59.

the general equitable right and the 1. Johnson v. Caldwell, 38 Tex. 217; statutory right. The former is forever Tarleton v. Kennedy, 21 La. An. 500. barred by the decree and sale; the latter

2. Vanduyne v. Vanduyne, 16 N. J. does not spring into existence until the Eq. 93; Danielv. Modawell

, 22 Ala. sale takes place.” Eiceman v. Finch, 365; Cunningham v. Felker, 26 Iowa 79 Ind. 511, 512, per Elliott, C. J. 117Lyon v. Brunson, 48 Mich. 194; 5. Davis v. Rupe, 114 Ind. 588; EdCent. Pac. R. Co. v. Creed, 70 Cal. wards v. Johnson, 105 Ind. 594; Moor 497; Cowan v. Sapp, 81 Ala. 526, and z'. Seaton, 31 Ind. 11. See also Butler Alabama

cited: Raymond v. v. Palmer, i Hill (N. Y.) 324; Moore Paule, 21 Wis. 531; Jenkins v. Merri- v. Martin, 38 Cal. 428; Tuolumne etc. weather, 109 Ill. 647; Ingram v. Belk, Co. v. Sedgwick, 15 Cal. 515. 2 Strobh. (S. Car.) 207; Stewart v. 6. Cargill v. Power, i Mich. 369; Marshall, 4 G. Greene (Iowa) 75. See Howard v. Bugbee, 24 How. (U. S.) Fletcher v. McGill, 110 Ind. 406. 461; Travellers’ Ins. Co. v. Brouse, 83

3. Wright v. Leclaire, 3 Iowa 241; Ind. 62. See also Buser v. Shepard, Osborn v. Cloud, 21 Iowa 238; Lyster 107 Ind. 417; Bryson v. McCreary, 102 9. Brewer, 13 Iowa 461; Stark Ind. 1; Coddington v. Bispham. 36 N Mitchel, 2 A. K. Marsh. (Ky.) 16; J. Eq. 574; Boice v. Boice, 27 Minn. 371; Williams v. Cummins, 4 J. J. Marsh. Hillebert v. Porter, 28 Minn. 496; Hey(Kr.) 637; Toler v. Ayres, i Tex. 398; ward v. Judd, 4 Minn. 483; 2 Jones McKinney v. Jones, 7 Tex. 598, s.c., 58 Mort., § 1051; Conflict of Laws, Am. Dec. 83; Sears v. Low, 2 Gilm. vol. 3, p. 499. 1 III.) 281, Baker v. Hall, 29 Kan. 442; 7. Hutchins v. Barnett, 19 Ind. 15; Cline v. Greene, i Blackf. (Ind.) 53; Doe v. Collins, i Ind. 24; Rorer on State Bank v. Marsh, Eng. (Ark.) Judicial Sales (2nd. ed.), § 1149. 129. See also Wilkie v. Ingham, 52

8. Robertson Dennis,

313 The officer who made the sale is not, 9. Livingston v. Arnoux, 56 N. Y. however, a necessary party in ordinary 507; s.c., il Alb. L. J. 111; Rorer on cases. Beach v. Dennis, 47 Ala. 262. Judicial Sales, § 1164; Yoakum

4. Rorer on Judicial Sales (2nd ed.), Bower, 51 Cal. 539; Elsworth v. Mul

1148; Herman on Executions, 437, doon, 15 Abb. Pr. U.S. (N. Y.) 440. ♡ 263; Freeman on Executions, $ 314.

And where land has been sold at exe

V.

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Mích. 64I.

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2. Who May Redeem.— The right of redemption is generally confined to the execution debtor and his grantee, and to judgment creditors and their assignees; but it is held that the statutory right to redeem when given to judgment creditors applies to those in favor of whom judgment is rendered after as well as before the sale.

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Iowa 474;

cution sale, the right of creditors to re- ment creditor of the grantor; and hence, deem from the purchaser at the sale, or such judgment creditor has no statutory of one creditor to redeem from another right to redeem the property from a who had previously redeemed from the sale thereof, made under special execupurchaser, cannot be cut off by a sale of tion, at the suit of other creditors, who the land by the judgment debtor. Mc. have had the conveyance set aside in a Clean v. Harris, 14 Lea (Tenn.) 510. proceeding in equity. Howland v.

1. Herman on Executions 437, § Knot, 59 Iowa 46. 264.

In Alabama, a tender, or offer to reThe right of redemption, given by deem, on compliance with the terms of statute to judgment creditors, cannot be the statute, by the judgment debtor extended by a court of equity to cred- himself, "reinvests him with the legal itors by simple contract only, although title;" but the statute does not extend their debts are ascertained and adjudged to his alienee or assignee, whose rights, by the decree. Seals v. Pheiffer, 77 if any passed by the assignment (a Ala. 278. See also Woods v.McGavock, question which is not decided), can 10 Yerg. (Tenn.) 133, Hopkins v. Webb, only be enforced in equity. Searcey v. 9 Humph. (Tenn.) 519.

Oates, 68 Ala. 111. The assignee of a judgment creditor In Nlinois, it is held that the mere is said to be a judgment creditor, in con- act of redeeming from a judicial sale templation of law. Sweezey v. Chan- may be done by one not having the dler, 11 Ill. 445; Stein v. Chambless, 18 right to redeem, as well as by one have

ing such right, provided the purchaser 2. Couthway v. Berghaus, 25 Ala. 393. sees proper to accept of the amount of See also Julian v. Beal, 26 Ind. 220; the charge or encumbrance,and the effect McMillan v. Richards, 9 Cal. 365; S. C., of such redemption will be to divest all 70 Am. Dec. 655.

the rights acquired under the sale. If Who May Redeem in Particular Cases. the redemption be made by a judgment -The vendee of an execution defend- creditor, in order to be availing to him ant, whose lands are sold at execution under his statutory right to redeem, and sale, may redeem the lands to which he to pass the title in case of a second sale holds title from such sale, although the in satisfaction of his own judgment, he judgment defendant may have appealed must have a valid execution, followed the case. Thayer v. Coldren, 57 lowa by a sheriff's deed executed in con

formity with the statute. It does not In the same State it is held that follow that because a redemption in fact where the plaintiffs and others obtained has been effected,the redeeming creditor a decree subjecting certain premises to will get a good title to the land, without the payment of their judgments in the the existence of the conditions named. order of their priority, and one execu- Meyer v. Mintonye, 106 Ill. 414. Comuon issued in the name of all, and the pare Bennitt v. Wilmington 'Star Minexecution sale was for the benefit of all, ing Co.,18 II. App. 17. but the proceeds were exhausted in In Indiana, the statute mentions five paying prior judgments, the plaintiffs classes of persons who may redeem, would not have the right to redeem from but they are all either owners of the such sale. An execution creditor can- real estate or some interest therein, their not redeem from his own sale. Hayden personal representatives and assigns, or v. Smith, 58 Iowa 285. And where a creditors holding junior liens of record party conveys his real estate with the thereon. 2 Works Ind. Pl. & Pr.; $ 1191. intent to defraud his creditors, the con- See also Green v'. Doane, 57 Ind. 186; veyance is absolute as to him, and he Fletcher v. Homes, 25 Ind. 458; Whisattains no equitable interest therein nand v. Small, 65 Ind. 120. which is the subject of a lien, under our The statute should, however, be liberstatute, in favor of a subsequent judg- ally construed. Green Doane, 57

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3. Time and Manner of Redemption.—The time and manner of redemption must depend upon the statute governing each particular case, and that statute must be followed in all material respects. The time of redemption is to be determined by excluding the first day and including the last day of the statutory period.? Nothing but money, or that which the law recognizes

ally

Ind. 186. See also Hervey v. Krost ham v. Kuper, 61 Cal. 331; Gross v: (Ind.), 19 N. E. Rep. 125. See gener, Fowler, 21 Cal. 392; People v. Luther,

upon this subject Rorer on Judicial i Wend. (N. Y.) 42. Sales, sø 1157, 1180; Herman on Exe

This period begins to run on the day cutions, $ 264; and as to the right of that the purchaser completes his purthose interested to redeem in case of a chase by the payment of his bid. Ligmortgage, see 2 Jones Mort., § 1055, et gett v. Firestone, 96 Ind. 260. See also seq.

Maina v. Elliott, 51 Cal. 8; York v. i. Eiceman v. Finch, 79 Ind. 511; Briscoe, 67 Ill. 533. Morss 2). Purvis, 68 N. Y. 225; Davis v. Redemption After Statutory Period. Seymour, 16 Minn. 210; Spoor v. Phil. The court cannot ordinarily extend the lips, 27 Ala. 193; Wilcoxson v. Miller, time for redemption beyond the statu49 Cal. 193; Ex parte Bank of Monroe, tory period. Hughes v. Feeter, 23 Iowa 7 Hill (N. Y.) 177; s. C., 42 Am. Dec. 547. Compare Carroll v. McCullough, 61; Waller v. Harris, 20 Wend. (N.Y.) 63 N. H. 9S; Rose v. Mead, 5 Gilm. 555; S. C., 32 Am. Dec. 590; Miller v. (ill.) 171; Lowry v. McGhee, 8 Yerg. Lewis, 4 N. Y. 560. Compare Hall v. (Tenn.) 242. Thomas, 27 Barb. (N. Y.) 58; People v. But it may be done by agreement of Ransom, 2 Hill (N. Y.) 58.

parties. Miller v. Lewis, 4 N. Y. 554; The following case arose in Indiana, Rector v. Shirk, 92 Ind. 31. under a statute allowing one year for It is competent for the purchaser of redemption: A recovered a personal real estate at sheriff's sale to suffer the judgment against B in 1870. C after- land to be redeemed from such sale, wards also recovered a personal judg- after the expiration of the year allowed ment against B, and on execution by law for such redemption and before thereon bid off B's land, after which A the execution of the sheriff's deed, and foreclosed an older mortgage upon the if he agree to such redemption, and acsame lands, not making C a party to his cept the redemption money, he will be foreclosure suit. After C received his estopped to deny the right to redeem. deed from the sheriff, the land was sold Taggart v. McKinsey, 85 Ind. 392. See to A by the sheriff upon an execution also Goddard 7'. Renner, 57 Ind. 532; on A's judgment and on his decree Phyfe v. Riley, 15 Wend. (N. Y.) 248. jointly, and in due time A received a Such an agreement, although verbal, sheriff's deed. Held, that C, after the is not void under the statute of frauds. lapse of a year from A's purchase, could Butt v. Butt, 91 Ind. 305; McMakin v. not redeem; aliter, if A's purchase Schenck, 98 Ind. 264. See also Marlatt had been upon his decree of foreclosure '. Warwick, 18 N. J. Eq. 108; Southard only. Cummings v. Pottinger, 83 Ind. v. Pope's Exrs., 9 B. Mon. (Ky.) 261; 294.

Turner v. King, 2 Ired. (N. Car.) 132; Formalities may, however, he waived S. C., 38 Am. Dec. 679. by the parties. People v. Ransom, 4 The following facts were alleged in Den. (N. Y.) 148; Blair v. Chamblin, the complaint in a recent case: A 39 111.521; s. c., 89. Am. Dec. 322; In owned a certain lot upon which was a matter of Eleventh Avenue, 81 N. Y mortgage debt due B. The lot was 436, 452; Kell v. Worden, uo Ill. 310; sold under an execution for another Kilbride r'. Munn, 55 Iowa 445; Tag: deht and was purchased by B, who gart 7. McKinsey, 85 Ind. 392; Bagley represented to A, who was a foreigner 7. Ward, 37 Cal. 129; Allen v. Mc- and uninformed on the subject, that the Gaughey, 31 Ark. 252.

lot was not subject to redemption un2. Teucher z: Hiatt, 23 Iowa 529; Ex less the mortgage debt was also paid, Parte Bank of Monroe, 7 Hill (N. Y.) but promised to hold the same in trust 177. S. C., 42 Am. Dec. 61; Rorer on until the rents and profits paid the judg. Judicial Sales, § 1183; Herman ment and ten per cent interest, and also Executions, 438, $ 265. "See also Per- the mortgage debt. These representa12 C. of L.-16

211

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