price, however, is not of itself sufficient cause, in an ordinary case, for setting aside the sale.1 paid, the deed acknowledged, recorded and delivered to the purchaser, and possession of the premises taken by him, the court has no power, upon a rule to show cause, to set aside the sale and compel the purchaser to deliver up the deed to be cancelled. Evans v. See also Maury, 112 Pa. St. 300. So in Illinois, after the deed for real estate sold under execution has been made, the court has no power, on motion, to set aside the deed or set aside the sale. It must be impeached, if at all, in equity, unless there was no judgment or execution, or the court had no jurisdiction to render the judgment. Section 65 of the Practice act has no application to motions to set aside judicial sales, but refers to writs of execution, replevin bonds and the like. Jenkins v. Merriweather, 109 Ill. 647. In Kansas, a sheriff's sale of real estate was set aside by the court, on motion of one of the parties, upon facts ascertained and proved by evidence other than the papers and proceedings already of record in the case, and without notice to and in the absence of one of the parties interested in the sale. Held, that the order of the court, setting aside the sale without notice, was erroneous under such circumstances. Baker v. Hall, 29 Kan. 442. Another interesting case was recently decided by the supreme court of Kansas. A judgment was rendered against the defendant on a promissory note and a real estate mortgage, in his absence and without his knowledge, in pursuance of a service of summons made by the sheriff, who left a duly certified copy thereof with his wife at his usual place of residence; the property was ordered to be sold; at the time when the judgment was rendered the land was worth but little more than the judgment; afterward the defendant returned home and had notice of the judgment; an order of sale was then issued; the defendant did not pay or tender the amount of the judgment or any part thereof, and did not attend the sale or attempt to make the property sell for what it was worth, and the property a person not an entire stranger to all the proceedings in the case, but not a party to the suit and having no interest in the judgment, for a sum much less than the amount of was sold to But gross inadequacy of price the judgment and much less than the value of the property; afterward the plaintiff moved the court to have the sale confirmed; and the defendant then tendered the amount of the judg ment and moved the court that the sale be set aside; and the plaintiff and purchaser then jointly moved the court to permit the purchaser to increase his bid up to the amount of the judgment, and to permit that amount to be credited on the judgment; at that time the land being worth nearly twice the amount of the judgment. Held, that the motions of the plaintiff and purchaser should be sustained, and the motion of the defendant should be overruled; that neither the manner of service of summons, nor the want of the defendant's actual knowledge of the rendition of the judgment, nor the fact that the purchaser was not an entire stranger to all the proceedings in the case, nor the fact that the property was sold for much less than its value, nor the fact that the property at the time of the confirmation of the sale was worth much more than the amount of the judgment, nor all together, will authorize the sale to be set aside. McGeorge v. Sease, 32 Kan. 387. In Indiana, a sale of land under an alias writ will not be set aside as void merely because the writ was improvidently issued by the clerk without the plaintiff's order. And in general one claiming in the character of a judgment creditor cannot avail himself of mere irregularities to set aside a consummated sale. Johnson v. Murray, 112 Ind. 154; s. c., 2 Am. St. Rep. 174. The doctrine of estoppel will often prevent a party from having a sale set aside where he has acquiesced therein, delayed too long or received the benefits thereof. See Critchlow v. Critchlow (Pa.), 11 Atl. Rep. 235; Presstman v. Mason (Md.), 11 Atl. Rep. 764; Walet v. Haskins, 68 Tex. 418; s. c., 2 Am. St. Rep. 501. See also EQUITY; ESTOPPEL. 1. Graffam v. Burgess, 117 U. S. 180; Brittin v. Handy, 20 Ark. 381; s. c., 73 Am. Dec. 497; Parker v. Glenn, 72 Ga. 637; Weaver v. Lyon (Pa.), 5 Atl. Rep. 782; Coolbaugh . Roemer, 32 Minn. 445; Beckwith v. Kings Mt. etc. Co., 87 N. Car. 155; Hunt . Fisher, 29 Fed. Rep. So and note; Littell v. Zuntz, 2 Ala. 256; s. c., 36 Am. Dec. 415. Thus a sheriff's sale on execution of has in many cases been treated as a badge of fraud,1 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, subject to a mortgage of $4,000, for the sum of $5, will not be set aside merely on the ground of inadequacy of price. Kerr. Haverstick, 94 Ind. 178. So held where $165 was bid for property worth $600. Sowles v. Harvey, 20 Ind. 217; s. c., 83 Am. Dec. 315. And see especially O'Callaghan v. O'Callaghan, 91 Ill. 228. But compare In re Palmer, 13 Fed. Rep. 870; Blackburn v. Selma R. Co., 3 Fed. Rep. 689. Affidavits which state simply that the lands "sold for greatly less than their value," not stating the value and price, or other facts from which these can be ascertained, being merely the statement of opinions, are not sufficient to set aside the sale. Holly . Bass, 68 Ala. 206. 1. See Fisher v. Shelver, 53 Wis. 498; Ames v Gilmore, 59 Mo. 537; Fuller v. Brewster, 53 Md. 358, 361; Apperson v. Burgett, 33 Ark. 338; Stevens v. Dillman, 86 Ill. 233; Loring v. Dunning, 16 Fla. 119. 2. Kloepping v. Stellmacher, 21 N. J. Eq. 328; Fletcher v. McGill, 110 Ind. 395; Wright v. Dick (Ind.), 19 N. E. Rep. 306; Cubbage v. Franklin, 62 Mo. 364; Morris v. Roley, 73 Ill. 462; Pearson 7. Hudson, 52 Tex. 352; Fitzgerald v. Kelso (Iowa), 29 N. W. Rep. 943; Bean v. Hoffendorfer (Ky.), 2 S. W. Rep. 556; Weir v. Travelers' Ins. Co., 32 Kan. 325; Lee v. Davis, 16 Ala. 516; Beckwith v. Kings etc. Co., 87 N. Car. 155. "Inadequacy of price is not sufficient per se to set aside a sale, unless it is so gross as, when combined with other circumstances, to amount to fraud; but if it be great, it is of itself a strong circumstance to evidence fraud; and this is true where it is attended by any other fact showing the transaction to be unfair or unjust or against good conscience." Parker . Glenn, 72 Ga. 637. Where an order of sale is issued without the authority or knowledge of the judgment creditor or any of his attorneys, and the creditor has no knowledge of the day of sale, and the attorneys of the creditor testify they had no notice thereof, and the attorneys are not present at the sale, and the real estate is bid in by one of the judgment debtors under the direction of his wife, for and in her name, at a grossly inadequate price, the district court is justified in setting the sale aside. Weir v. Travelers' Ins. Co., 32 Kan. 325. Great inadequacy of price at a judicial sale of real estate requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise a presumption of fraud. And if the inadequacy of price at a sale on an execution be so gross as to shock the conscience, or if in addition to gross inadequacy the purchaser has been guilty of unfairness or has taken any undue advantage, or if the owner of the property or the party interested in it has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, and the party injured will be permitted to redeem the property sold. Graffam v. Burgess, 117 U. S. 180. Where real estate is sold at sheriff's sale, a few minutes prior to the time at which the sale was advertised to take place, and at a grossly inadequate price, the sale may be set aside on motion of the defendant. Pickett v. Pickett, 31 Kan. 727. See also, for a collection of many other authorities upon this subject, DEBTS OF DE EDENTS, vol. 5, p. 301; Subtit. Restra ning and Setting Aside. 3. Freeman on Executions, § 305; Galbreath v. Drought, 29 Kan. 711; Cravens v. Wilson, 48 Tex. 324; U. S. v. Vestel, 12 Fed. Rep. 59. Thus holders of subordinate liens or those to whom property is transferred subject to the lien of the execution may, in proper cases, have the sale vacated. Harrison v. Andrews, 18 Kan. 535; Cravens v. Wilson, 48 Tex. 324. Compare Frink v. Morrison, 13 Abb. Pr. (N. Y.) So. 4. Gilmer, Matter of, 21 La. An. 589, and Louisiana cases there cited; Laird 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. 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 hability 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 . Laird, 4 Pac. L. Jour. 474; Glassell v. Wilson, 4 Wash. (U. S.) 59. 1. Johnson v. Caldwell, 38 Tex. 217; Tarleton v. Kennedy, 21 La. An. 500. 2. Vanduyne v. Vanduyne, 16 N. J. Eq. 93; Daniel v. Modawell, 22 Ala. 365; Cunningham v. Felker, 26 Iowa 117; Lyon v. Brunson, 48 Mich. 194; Cent. Pac. R. Co. v. Creed, 70 Cal. 497; Cowan v. Sapp, 81 Ala. 526, and Alabama cases cited: Raymond v. Paule, 21 W1s. 531; Jenkins v. Merriweather, 109 Ill. 647; Ingram v. Belk, 2 Strobh. (S. Car.) 207; Stewart v. Marshall, 4 G. Greene (Iowa) 75. See Fletcher v. McGill, 110 Ind. 406. 3. Wright v. Leclaire, 3 Iowa 241; Osborn v. Cloud, 21 Iowa 238; Lyster v. Brewer, 13 Iowa 461; Stark v. Mitchel, 2 A. K. Marsh. (Ky.) 16; Williams v. Cummins, 4 J. J. Marsh. (Ky.) 637; Toler v. Ayres, 1 Tex. 398; McKinney v. Jones, 7 Tex. 598, s. c., 58 Am. Dec. 83; Sears v. Low, 2 Gilm. Ill.) 281, Baker v. Hall, 29 Kan. 442; Cline v. Greene, 1 Blackf. (Ind.) 53; State Bank v. Marsh, 5 Eng. (Ark.) 129. See also Wilkie v. Ingham, 52 Mich. 641. The officer who made the sale is not, however, a necessary party in ordinary cases. Beach v. Dennis, 47 Ala. 262. 4. Rorer on Judicial Sales (2nd ed.), 1148; Herman on Executions, 437, 9263; Freeman on Executions, § 314. "There are two rights of redemption, the general equitable right and the statutory right. The former is forever barred by the decree and sale; the latter does not spring into existence until the sale takes place." Eiceman v. Finch, 79 Ind. 511, 512, per ELLIOTT, C. J. 5. Davis v. Rupe, 114 Ind. 588, Edwards v. Johnson, 105 Ind. 594; Moor v. Seaton, 31 Ind. 11. See also Butler v. Palmer, 1 Hill (N. Y.) 324; Moore v. Martin, 38 Cal. 428; Tuolumne etc. Co. v. Sedgwick, 15 Cal. 515. 6. Cargill v. Power, i Mich. 369; Howard v. Bugbee, 24 How. (U. S.) 461; Travellers' Ins. Co. v. Brouse, 83 İnd. 62. See also Buser v. Shepard, 107 Ind. 417; Bryson v. McCreary, 102 Ind. 1; Coddington v. Bispham. 36 N J. Eq. 574; Boice v. Boice, 27 Minn. 371; Hillebert v. Porter, 28 Minn. 496; Heyward v. Judd, 4 Minn. 483; 2 Jones Mort., § 1051; CONFLICT OF LAWS, vol. 3, p. 499. 7. Hutchins v. Barnett, 19 Ind. 15; Doe v. Collins, 1 Ind. 24; Rorer on Judicial Sales (2nd. ed.), § 1149. 8. Robertson υ. Dennis, 20 Ill. 313. 9. Livingston v. Arnoux, 56 N. Y. 507; s. c., II Alb. L. J. 111; Rorer on Judicial Sales, § 1164; Yoakum v. Bower, 51 Cal. 539; Elsworth v. Muldoon, 15 Abb. Pr. U. S. (N. Y.) 440. And where land has been sold at exe 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.2 cution sale, the right of creditors to redeem from the purchaser at the sale, or of one creditor to redeem from another who had previously redeemed from the purchaser, cannot be cut off by a sale of the land by the judgment debtor. McClean v. Harris, 14 Lea (Tenn.) 510. 1. Herman on Executions 437, 9 264. The right of redemption, given by statute to judgment creditors, cannot be extended by a court of equity to creditors by simple contract only, although their debts are ascertained and adjudged by the decree. Seals v. Pheiffer, 77 Ala. 278. See also Woods v.McGavock, 10 Yerg. (Tenn.) 133, Hopkins v. Webb, 9 Humph. (Tenn.) 519. The assignee of a judgment creditor is said to be a judgment creditor, in contemplation of law. Sweezey v. Chandler, 11 Ill. 445; Stein v. Chambless, 18 Iowa 474. 2. Couthway v. Berghaus, 25 Ala. 393. See also Julian v. Beal, 26 Ind. 220; McMillan v. Richards, 9 Cal. 365; s. c., 70 Am. Dec. 655. Who May Redeem in Particular Cases. -The vendee of an execution defendant, whose lands are sold at execution sale, may redeem the lands to which he holds title from such sale, although the judgment defendant may have appealed the case. Thayer v. Coldren, 57 Iowa I10. In the same State it is held that where the plaintiffs and others obtained a decree subjecting certain premises to the payment of their judgments in the order of their priority, and one execution issued in the name of all, and the execution sale was for the benefit of all, but the proceeds were exhausted in paying prior judgments, the plaintiffs would not have the right to redeem from such sale. An execution creditor cannot redeem from his own sale. Hayden v. Smith, 58 Iowa 285. And where a party conveys his real estate with the intent to defraud his creditors, the conveyance is absolute as to him, and he no equitable interest therein which is the subject of a lien, under our statute, in favor of a subsequent judg attains ment creditor of the grantor; and hence, such judgment creditor has no statutory right to redeem the property from a sale thereof, made under special execution, at the suit of other creditors, who have had the conveyance set aside in a proceeding in equity. Howland v. Knot, 59 Iowa 46. In Alabama, a tender, or offer to redeem, on compliance with the terms of the statute, by the judgment debtor himself, "reinvests him with the legal title;" but the statute does not extend to his alienee or assignee, whose rights, if any passed by the assignment (a question which is not decided), can only be enforced in equity. Searcey v. Oates, 68 Ala. 111. In Illinois, it is held that the mere act of redeeming from a judicial sale may be done by one not having the right to redeem, as well as by one having such right, provided the purchaser sees proper to accept of the amount of the charge or encumbrance,and the effect of such redemption will be to divest all the rights acquired under the sale. If the redemption be made by a judgment creditor, in order to be availing to him under his statutory right to redeem, and to pass the title in case of a second sale in satisfaction of his own judgment, he must have a valid execution, followed by a sheriff's deed executed in conformity with the statute. It does not follow that because a redemption in fact has been effected, the redeeming creditor will get a good title to the land, without the existence of the conditions named. Meyer v. Mintonye, 106 Ill. 414. Compare Bennitt v. Wilmington Star Mining Co., 18 Ill. App. 17. In Indiana, the statute mentions five classes of persons who may redeem, but they are all either owners of the real estate or some interest therein, their personal representatives and assigns, or creditors holding junior liens of record thereon. 2 Works Ind. Pl. & Pr.; § 1191. See also Green v. Doane, 57 Ind. 186; Fletcher v. Homes, 25 Ind. 458; Whisnand v. Small, 65 Ind. 120. The statute should, however, be liberally construed. Green v. Doane, 57 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 Ind. 186. See also Hervey v. Krost (Ind.), 19 N. E. Rep. 125. See generally upon this subject Rorer on Judicial Sales, §§ 1157, 1180; Herman on Executions, § 264; and as to the right of those interested to redeem in case of a mortgage, see 2 Jones Mort., § 1055, et seq. 1. Eiceman v. Finch, 79 Ind. 511; Morss v. Purvis, 68 N. Y. 225; Davis v. Seymour, 16 Minn. 210; Spoor v. Phillips, 27 Ala. 193; Wilcoxson v. Miller, 49 Cal. 193; Ex parte Bank of Monroe, 7 Hill (N. Y.) 177; s. c., 42 Am. Dec. 61; Waller v. Harris, 20 Wend. (N.Y.) 555; s. c., 32 Am. Dec. 590; Miller v. Lewis, 4 N. Y. 560. Compare Hall v. Thomas, 27 Barb. (N. Y.) 58; People v. Ransom, 2 Hill (N. Y.) 58. The following case arose in Indiana, under a statute allowing one year for redemption: A recovered a personal judgment against B in 1870. C afterwards also recovered a personal judgment against B, and on execution thereon bid off B's land, after which A foreclosed an older mortgage upon the same lands, not making C a party to his foreclosure suit. After C received his deed from the sheriff, the land was sold to A by the sheriff upon an execution on A's judgment and on his decree jointly, and in due time A received a sheriff's deed. Held, that C, after the lapse of a year from A's purchase, could not redeem, aliter, if A's purchase had been upon his decree of foreclosure only. Cummings v. Pottinger, 83 Ind. 294. Formalities may, however, be waived by the parties. People v. Ransom, 4 Den. (N. Y.) 148; Blair v. Chamblin, 39 Ill. 521; s. c., 89 Am. Dec. 322; In matter of Eleventh Avenue, 81 N. Y. 436, 452; Kell v. Worden, 110 Ill. 310; Kilbride . Munn, 55 Iowa 445; Taggart v. McKinsey, 85 Ind. 392; Bagley Ward, 37 Cal. 129; Allen v. McGaughey, 31 Ark. 252. 2. Teucher Hiatt, 23 Iowa 529; Ex parte Bank of Monroe, 7 Hill (N. Y.) 177. S. C., 42 Am. Dec. 61; Rorer on Judicial Sales, § 1183; Herman_on Executions, 438, § 265. See also Per 12 C. of L.-16 ham v. Kuper, 61 Cal. 331; Gross v. Fowler, 21 Cal. 392; People v. Luther, 1 Wend. (N. Y.) 42. This period begins to run on the day that the purchaser completes his purchase by the payment of his bid. Liggett v. Firestone, 96 Ind. 260. See also Maina v. Elliott, 51 Cal. 8; York v. Briscoe, 67 Ill. 533. Redemption After Statutory period. The court cannot ordinarily extend the time for redemption beyond the statutory period. Hughes v. Feeter, 23 Iowa 547. Compare Carroll v. McCullough, 63 N. H. 98; Rose v. Mead, 5 Gilm. (Ill.) 171; Lowry v. McGhee, 8 Yerg. (Tenn.) 242. But it may be done by agreement of It is competent for the purchaser of real estate at sheriff's sale to suffer the land to be redeemed from such sale, after the expiration of the year allowed by law for such redemption and before the execution of the sheriff's deed, and if he agree to such redemption, and accept the redemption money, he will be estopped to deny the right to redeem. Taggart v. McKinsey, 85 Ind. 392. See also Goddard v. Renner, 57 Ind. 532; Phyfe v. Riley, 15 Wend. (N. Y.) 24S. Such an agreement, although verbal, is not void under the statute of frauds. Butt v. Butt, 91 Ind. 305; McMakin v. Schenck, 98 Ind. 264. See also Marlatt v. Warwick, 18 N. J. Eq. 108; Southard v. Pope's Exrs., 9 B. Mon. (Ky.) 261: Turner v. King, 2 Ired. (N. Car.) 1324 s. c., 38 Am. Dec. 679. The following facts were alleged in the complaint in a recent case: A owned a certain lot upon which was a mortgage debt due B. The lot was sold under an execution for another debt and was purchased by B, who represented to A, who was a foreigner and uninformed on the subject, that the lot was not subject to redemption unless the mortgage debt was also paid, but promised to hold the same in trust until the rents and profits paid the judgment and ten per cent. interest, and also the mortgage debt. These representa241 |