Anniston Pipe Works v. Williams , 106 Ala. 324 ( 1894 )

HARALSON, J.

— 1. Section 2907 of the Code provides, as to the sale of real estate under execution, that “lands when levied upon under execution from any court of record, must be sold on any Monday in the month, at the court-house of the county.” It is not denied, that if there were but one court-house in Calhoun county, the' sale of the land in question, to be legal, must have been made at that place. There is high authority for holding, that where the statute prescribes the place where real estate is to be sold under execution, it is imperative and mandatory, and a sale at any other place would be void. Herman on Executions, § 2Ó0 ; Freeman on Executions, § 289 ; Rorer- on Judicial Sales, § 779 ; Howard v. North, 5 Tex. 290 ; Grace v. Garnett, 38 Tex. 156 ; Koch v. Bridges, 45 Miss. 247.

Jacksonville is the county seat of Calhoun county, and a court house of the county is located there. The act establishing the city court of Anniston, clothed the judge and court thereof, within the precincts of the county designated, including the city of Anniston, with the same powers, authority and jurisdiction as circuit judges and chancellors, and circuit and chancery courts have and exercise. — Acts 1888-89, p. 564. It is provided therein, “that said court shall be held and the office of said clerk (of the court) and the records thereof, shall be kept at such place in the city of Anniston as may be provided by the court of county commissioners of Calhoun county the’ grand and petit jurors for said court are drawn by the jury commissioners of said county; the sheriff of the county is made the executive officer of that court, in all respects as he is of the circuit and chancery courts ; the fines and forfeitures accruing in said court are paid into the county treasury, and the salary of the judge is paid by the county. It thus appears, that said court is a part of the machinery for the administration of justice in said county, of co-equal and co-ordinate powers and authority with the circuit aud chancery courts therein, and that its records, proceedings and court-house, appertain to judicial proceedings in and belonging to the county, in the same sense and degree, as do those of the circuit and chancery courts. It may be said, therefore, that Calhoun county has two courthouses, one in Jacksonville and one in Anniston, and that sales of real estate sold at the court house in Anniston, are sales at the court-house of the county, within the meaning of said section 2907 of the Code.

2. The sale in this case was made in bulk, of a large quantity of real estate in the city of Anniston. It included the interest of the defendant, Williams, in execution, in about 27 acres lying between cercain designated boundaries, laid off, as appears from the map, into about 130 lots, with three blocks remaining not subdivided. Another part of the levy and sale, included all claim of the said Williams in sections 5, 6, 7 and 8, in township 16, R. 8 in Calhoun county, which we infer from the map submitted, and from the arguments in the cause, embrace four square miles covering a large part of the residence and business portions of the city of Anniston, with many hundred blocks subdivided into lots ; and besides, there is a very large number of lots and blocks, too numerous for one to venture, without counting very particularly, to number with accuracy ; and with such inaccuracy of description, the whole property, or defendant’s interest in it, was offered and bid off by the receiver of the appellant, The Anniston Pipe Works, in mass, for $7,026.25, to satisfy several executions against the defendant, Williams. It was agreed, and the sheriff’s deed recites the fact, that that amount of money was paid to the sheriff in consideration of which he executed a deed to the property to the purchasers, — August 16, 1892. What was the aggregate of the several executions under which the property was sold, does not appear, but it is shown, that two of the four executions, — the ones in favor of the First National Bank of Anniston, and the Birmingham Trust & Savings Company, each of which were prior liens, — were paid in full, together -with the sheriff’s costs and commissions for making the sale, and the sheriff was directed to enter upon the execution in favor of the Anniston Pipe Works, the appellant, against the defendant, W. H. Williams, a credit for the balance of the amount of said purchase money.

In respect of sales in mass, Mr. Freeman, says: “Where several distinct parcels of real estate, or several articles of personal property are to be sold, what is called a ‘lumping sale’ can rarely be justified. Such a sale, when objected to in due time, will not be upheld, unless special circumstances can be shown, from which it must be inferred that such sale was either necessary or advantageous. It is sometimes said, that such a sale will not be vacated until it is shown to have injured some one. But when two or more distinct lots are to be sold, the officer should always endeavor to sell them separately", unless it is clear that they will bring more, if offered together. If in disregard of his duty, he should sell them in a lump, as one parcel, the sale will be set aside, on a seasonable application.” — Freeman on Executions, § 296.

Holding to the same view, Mechem gives as its reason, “that no greater amount shall be sold than is necessary to satisfy the execution; and it increases competition : many persons may desire to purchase a lot or parcel who wouid not or could not purchase several or the whole quantity levied on, and where by statute a debtor is allowed a certain time for redemption, by selling in parcels, the price- of each lot is definitely fixed, thereby enabling him to redeem any portion of the property sold.” — Mechem on Executions, § 222 ;'Rorer on Judicial Sales, § 730; 12 A. & E. Encve. of Law, 214, 215, and authorities cited in each ; Wheeler v. Kennedy, 1 Ala. 292 ; Jones v. Davis, 2 Ala. 730; Mobile Cotton Press v. Moore, 9 Port. 679 — 92 ; Klopp v. Witmoyer, 43 Penn. St. 219; s. c. 82 Am. Dec. 563 ; Nesbitt v. Dallam, 7 Gill. & John., 494; s. c. 28 Am. Dec. 236.

Two witnesses for the movants swore, the one, that the property sold was worth at the time, $168,000, and the other, that it was worth $158,275. The five witnesses for the appellant swore, that the price at which it was bid off, when all the circumstances were considered, was fair. But, without reference to the adequacy of the amount bid, there can be no doubt that the defendant has presented a case, if his application does not come too late, when, under proper proceedings, the sale should be set aside.

3. As to the time within which a motion to set aside a sale of land under execution must be made, we have repeatedly held, that no inflexible rule has been or can be announced. There should always be promptness in making such a motion, the reasonableness of which is to be determined by the particular circumstances of each case. The question of laches, when involved, must be determined on equitable principles. — Bolling v. Gantt, 93 Ala. 90; Ponder v. Cheeves, 90 Ala. 117; Cowan v. Sapp, 74 Ala. 44. In the case in hand, the application was made inside of two years after the sale. The property remained unchanged, meantime, so far as appears ; and we fail to discover anything as affecting the property itself, and the relation of the purchasers to it, which would make it injurious or prejudicial to them, as for any delay that has occurred, for the motion to set aside the sale to be granted, under proper conditions, and much, that may come to defendant, if the sale is not sot aside.

But, how can a court of law deal with such a case as we have before us ? The general rule is, that a court of law has complete control over its processes, to prevent abuse and injustice ; but circumstances may arise in the execution of the orders or processes of a law court, which on account of its fixed rules, render it incompetent to administer full relief to a party seeking its aid, or to protect from injustice and injury the rights of others which have intervened. On the motion of the movants and the proofs introduced, it is evident that the sale should be set aside; but, from the answer to the motion and the evidence -introduced, it appears that the sheriff has executed a deed to the purchasers of the lots in question, which a court of law has no power to annul, and that the purchasers have rightfully paid out considerable sums of money in paying taxes and removing liens on the property, which should be refunded or secured to them. It would be manifestly inequitable and contrary to well established rules on the subject, to set aside the sale, without refunding to them the money they have paid out, and placing them in statu quo. These facts give rise to questions of law which can be properly determined only in a court of equity, and which must be adjudicated before the movants are entitled to have the sale set aside. Cowan v. Sapp, 81 Ala. 525 ; Ray v. Womble, 56 Ala. 32, supra; Littell v. Zuntz, 2 Ala. 256; Day v. Graham, 1 Gilman 446 ; Wimberly v. Mayberry, 94 Ala. 255 ; Jenkins v. Merriweather, 109 Ill. 647; State Bank v. Noland, 13 Ark. 299 ; 2 Freeman on Executions, § 310.

4. As applicable to this case, — if it should require further litigation in equity to reconcile differences the parties themselves are so competent to adjust, — we refer to the conclusions expressed in Bay v. Womble, 56 Ala. 32, supra that the purchaser in that case was entitled to the purchase money ; and if it had been applied to the satisfaction of the execution, the decree vacating the sale should secure it to him, with interest'; that it was not essential for the complainant to offer in his bill, to refund the purchase money; that the sale was compulsory, distinguishable from that class of cases, in which a complainant, seeking the rescission of a contract, because of fraud or mistake, must offer to place the party with whom he dealt in statu quo, before a court of equity will be active for his relief ; that a resale was the right of complainant, though he was unable to pay the purchaser the money he had expended ; and that the court, in decreeing the vacation of the first sale, and ordering a resale, if necessary, because of the inability of the complainant to refund the purchase money, would of course fully protect the purchaser ; but that it could not be tolerated that a judicial sale, tainted with fraud, or a breach of official duty, oppressive and grossly unjust to an unfortunate debtor, should be permitted to stand, because of the debtor’s inability to refund the purchase money.

For the reasons assigned, we must hold that the court of law was not competent to make the order it did in setting aside this sale. The defendant must seek a remedy in another forum, if he finds it necessary to do so. The judgments of the court are reversed, and the causes remanded.

Reversed and remanded.

McClellan, J., dissenting.