Holly v. Bass' Adm'r , 68 Ala. 206 ( 1880 )

SOMERYILLE, J.

Courts of law and equity alike possess a species of equitable jurisdiction, which is inherent in them, and by which they assume to prevent the abuse of their process, and so to control it as to secure the ends of justice and fair dealing. And it is on the basis of this universally recognized principle that courts exercise the power of setting aside sales under execution, issued on judgments rendered by themselves. The grounds of the jurisdiction usually are, mistake, irregularity, fraud, misconduct in selling, and gross inadequacy of price.—Rorer on Jud. Sales, §§ 1081-3, 1099; Drains v. Smelser, 15 Ala. 423. But the party aggrieved, in such cases, is required to prosecute his motion within a seasonable time, which is determined by the facts of each particular case, and he must, furthermore, satisfy the mind of the court that the act complained of has resulted to.his injury or prejudice.—Ray's Adm’r v. Womble, 56 Ala. 32; Hurt v. Nave’s Adm’r, 49 Ala. 459.

Some of the objections, urged by the appellant to the sale made by the sheriff in this case, are mere collateral impeachments of the decree on which the execution issued. These, even’ if well taken, present irregularities which can be taken advantage of only in a direct proceeding by appeal, and they cannot be reviewed otherwise.

The affidavits, which were admitted in evidence before the chancellor, were all defective, in failing to show any inadequacy of price. It is not sufficient to show that the lands “ sold for greatly less than their value.” The actual value of the lands should be shown, or facts stated from which it could be deduced by the court; and also the price in money for which they were purchased at the sale, which is sought to be impeached. The mere opinions of the witnesses, unsupported by facts, cannot satisfactorily enlighten the mind of the court. Rorer on Jud. Sales, §§ 1086-1095.

The averments as to the alleged defects in the advertisement by the sheriff, and in the notice given by him to the defendant in execution, present mere irregularities, which are not shown by the record to be accompanied with results manifestly injurious to appellant. Without such proof of injury, they do not authorize the sale to be vacated.—Ray’s Adm’r v. Womble, 56 Ala. 32; Ware v. Bradford, 2 Ala. 676.

The exclusion of the affidavit of the appellant, Holly, was not erroneous. The statute authorizes all affidavits, required' in the commencement or progress of any suit or judicial proceedings, to be-taken without this State; only before commissioners appointed by the governor of this State, any judge or clerk of a Federal court, any judge of any court of record, or notary public,, who shall certify under their hand's and seal's of office, if any.—Code, 1876, § 550.

There is nothing' to- prove the fact that the Cou-nty Court of Escambia county, in the State of Florida, is a court of record, the certificate of the county judge failing even to aver it. We cannot judicially take notice of such-facts existing in foreign jurisdictions.

We cannot see, in view of these principles, that there is any error in the judgment of the lower court in refusing t©> set aside' the sale,, and the judgment is affirmed-