Draine v. Smelser & Henderson , 15 Ala. 423 ( 1849 )

DARGAN, J.

A court of law is fully competent to control the acts of their officers, and to set aside sales made by them, by virtue of legal process, when there has been fraud in the sale, or the officer guilty of such irregularity, as is oppressive, and injurious to the rights of either plaintiff or defendant. 9 Porter, 682, and the cases there cited. But whether the court will interfere to set aside a sale, must always depend on the facts of each particular case, and the party moving to have it set aside, must show either fraud, or such irregularity in conducting the sale, together with injury to the rights of the party, as will satisfy the court that the sale should not be made.

The first ground relied on, to show that the sale in this case oughtoto be set aside, is, that the land was sold by a deputy of the bank agent. It is contended, that although the agents of the bank, are clothed with the same powers in the execution of process in favor of the bank, that sheriffs possess by law, yet they are not authorized to appoint deputies, or to perform the duties required of them by another. We cannot give so limited a construction to the act, authorizing the State Bank, and its branches, to appoint agents to execute process. The act declares, that the agents shall have the same powers, shall be entitled to the same fees, and shall observe the same regulations, as the existing laws prescribe to sheriffs. We think that this statute intends to invest the agents of the bank, with all the powers, rights, and authority, in reference to the execution of process in favor of the bank, that sheriffs possess, either by common law, or by our statutes. In other words, the agent, is the sheriff for the bank, invested fully with all his authority, and may perform the duties of his office by deputy.

2. Nor can we yield our assent to the argument, that the sale should be set aside, because the land was sold under three executions, instead of selling under one alone. We do not perceive any reason, why land may not be advertised, and sold to pay different judgments, nor how the title of the purchaser will be embarrassed, by selling to satisfy two, or more executions. How can the title be defective, which the purchaser obtains by a sale under two executions at the samé time, when a sale under either, would be valid ? Or why should the land bring less, or how is the defendant injured by such a sale ? If it is sold under one alone, the purchase money must be applied to all, and we cannot see that benefit would accrue to the defendant, or plaintiff, by selling under one, or injury, by selling under all.

3. It is however contended, that the sale should be set aside, for inadequacy of price. The affidavit of the defendants, which appears to have been the only evidence on which the court acted, states, that the land was worth eight hundred dollars, but brought only four hundred.

In the case of the Mobile Cotton Press v. Moore & Magee, 9 Ala., 682, it is said, that inadequacy of price, within itself, is not a sufficient ground to set aside a sale of land. See also, Hart v. Blight, 3 Monroe, 273; 1 Lit. Select Cases, 256. But coupled with other circumstances, it may be. I will not lay down the rule so. broad, that mere inadequacy of price may not afford, within itself, such evidences as would super-induce the belief of fraud ; or such gross neglect, in the execution of the process as would require the court to interfere, and set aside the sale. But I do not think, that the price at which the land was sold, in this case, can afford any ground, that will justify a court, in setting it aside. Nor can" we perceive that there are any circumstances connected with the sale, which, in conjunction with the price at which it was sold, will warrant us in setting it aside. The land had been levied on for two months previous to the sale ; no steps were taken to pay the debts, or to stop the executions. The offer to pay one execution, if the agent would postpone the sale, created no legal obligation on him to do it, and indeed he might have subjected himself to legal liability had he complied.

But, it is contended, that the offer of Henderson to pay up ihe judgment against him, is a fact, or circumstance that ought to set the sale aside. If it had been shown, that the land was not legally liable to all the judgments, we should be disposed, indeed compelled, to hold this sufficient ; but it is not stated, that the land was not liable for the payment of all the judgments. Indeed, we are led to the conclusion, from reading the affidavits, that all the judgments were liens on the land, and if Henderson was the owner, at the time of the sale, he held in subordination to those liens.

The affidavits on which the rule was granted, state, that the affiants are informed, and believe, that the judgment for $204 90, was fully paid before the sale. If this fact was so, of which however, we have no other proof than that contained in the affidavit of the parties, it could not affect the sale. The two other judgments remained unpaid, with some credits on one, the amount of which we are not advised. They were valid, and bound the land. It was duly advertised, and no act was done by the agent of the bank, the purchaser, or the plaintiff in execution, that was calculated to prevent the land from bringing its full value. The price at which it was sold, affords no evidence within itself, that will warrant us in divesting the purchaser of such title as he may have acquired; nor can we find any circumstance connected with the sale, that requires us to set it aside. -

The judgment of the county court must be reversed.