Henderson v. Sublett , 21 Ala. 626 ( 1852 )

LIGON, J.

— 'Two questions present themselves in this case: 1st. Was tbe conduct of tbe sheriff in tbe levy and sale, under tbe executions in his bands, of such a character as to authorize tbe Circuit Court to set aside tbe sale, and vacate and annul tbe deed made to tbe purchaser ? 2d. Have the plaintiffs in this motion such an interest in tbe lands sold, as to entitle them to come in and make tbe motion ?

1. On tbe first question I would remark, that it has already been decided by this court, in tbe case of Lee v. Davis et al., 16 Ala. 516, and we concur fully in what is there said upon tbe subject. There seldom occur, in tbe history of judicial decisions, two cases so perfectly analogous in their facts, as tbe case cited and tbe one under consideration. Our conclusion is, that tbe sale should have been set aside, and tbe Circuit Court erred in not doing so.

An expression, however, occurs in tbe opinion of tbe court, in tbe case of Lee v. Davis et al., supra, which, without some explanation and limitation, cannot command our assent. It is this: “ Inadequacy of price may not be sufficient cause for setting aside a sale of land under execution; but when coupled with other circumstances, it has induced tbe courts to avoid tbe purchase.” We readily concede, that every inadequacy of price will not be sufficient to set aside a sale of lands under execution; but when tbe inadequacy is so glaring and gross, as at once to shock tbe understanding and conscience of an honest and just man, it will, of itself, authorize tbe court to set aside tbe sale. For instance, if, as in the case under consideration, a tract of land of tbe value of $1800 is sold for $5, the court out of which tbe execution issued should not hesitate to set aside tbe sale for this cause alone. In all such cases, tbe sheriff should not proceed with tbe sale, but return tbQfi.fa. levied, but tbe property not sold for want of buyers, and wait for a venditioni exponas.

It would be difficult to lay down a general rule on this subject, which would adapt itself to all cases. The one just suggested would, perhaps, be as safe as any that could be proposed. Still, much would be left to the sound discretion of thé sheriff, and should he fail to exercise it fairly, the court could review it, and thus decide the question of abuse or no abuse of process, according to the circumstances of each case as it arises. But it would be monstrous to hold, that a sale should be allowed to stand, which would invest the purchaser with the title to property, whether real or personal, at one three hundredth part of its value, or even less, as is the case here.

The practice suggested above has long since obtained in. England; and if the sheriff, after having levied on property of sufficient value to satisfy the fi. fa. fails to observe it, and sacrifices the property by selling it at a sum greatly below its value, and insufficient to pay the plaintiff’s-demand, the courts there have compelled him to satisfy, out of his own means, the sum remaining unpaid. Keightly v. Birch et al, 3 Camp. 521. See, also, the case of Lankford v. Jackson et al., decided at the present term, in which the English authorities are collated by Chief Justice Chilton.

2. On the second point presented, we think it clear that any person who is either a party to the suit, or connected with the title to the lands sold, majr be heard on these motions. It is not necessary that the interest of a party be legal. If he have an equitable interest, it will suffice for this purpose, inasmuch as the questions involved in the motion do not bring up the title to the lands, but the oppressive or fraudulent use made by the sheriff of the process of the court, by which the interest of the party complaining has been injuriously affected.

In the case of Lee v. Davis et al., heretofore cited, it was held: “That where the injury complained of is in the execution of the process, and not for a defect in the process itself, it is competent for any person whose interests are thereby prejudiced, to move the court to avoid the sale.”

That these plaintiffs have an interest in the lands sold, can scarcely be seriously questioned. Lindsay, the defendant in the executions, conveyed these lands to Houston, in the year 1842, in trust for the benefit of Hindman and McCollom, who were his sureties on his bond as guardian for these plaintiffs. The record shows, that his guardian’s accounts are still unset-tied, and that be is a defaulter to his wards to a large amount. They are seeking the recovery of this sum in the Chancery Court, and asking to be substituted to the right of Hindman and McOollom under the deed. They also show, that Mc-Collom is dead, and Hindman has removed from the State. Houston has also removed from the State, but was present on the day of sale, by his agent, not to assert his right under this deed, but to set up an adverse title in himself under a former deed from Lindsay. It is also shown, that the plaintiffs had already claimed an interest in the lands in the Chancery Court, the only proper forum in which they could appear to claim their right, and in which, doubtless, (if nothing more appears than is disclosed by this record,) it will be allowed them. It is clear, that they have such an equity in the lands as will enable them to come into a court of law on the motion under consideration.

These views do not militate against the decision of this court in the case of Nuchols v. Mahone, 15 Ala. 212, to which we have been referred by the counsel for the defendants. The questions in the two cases are essentially different, and the results to the parties, arising out of the judgment of the court in setting aside the sale, wholly dissimilar. In that case, the objection to the fi. fa. was, that it was issued after the death of the defendant, and went to the process itself, and not to the abuse of it in its execution. A latent defect in th efi.fa., although sufficient to render it void ab initio, cannot be regarded as an abuse of the authority of the sheriff, or in any manner enter into its execution, where the officer has only followed its mandate. A purchaser under it would take no title, and those whose interests are apparently affected by it may show the process itself to be void, and thus successfully defend themselves at law, against any right which the purchaser under it might attempt to set up against them. In the present case, the objection goes alone to the execution of the process, and the objection is such as could not avail the parties injured in any action involving the title to the land. Lee v. Davis, supra.

Our conclusion is, that the court below erred in repudiating the motion. Its judgment is therefore reversed, and the cause remanded, that it may be proceeded in according to the principles of this opinion, and tbe parties *be placed in statu quo. before tbe sale by tbe sheriff.