Fabel v. Boykin

Fabel v. Boykin. Jilotion to ~et aside She?~ff's Sale under Execz~t'~on. 1. ,Judqmaei a~ncZ executioa arjainst Iwo dçfendanls, when one is dead. -A judg~' meut against two defendants, one of whom is dead at the time of its rendition, is void only as against the deceased defendant; and if no motion is made to vacate it as against him, execution may properly be issued against both of the defendants, and levied on the property of the survivor. 2. Inadequacy qf price, as groundfo~ setting aside sheriff's sale under eaccufion~ Gross inadequacy of price is, ordinarily, a good and sufficient reason for setting aside a sheriff's sale of lands under execution, at which the plaintiff in execution became the purchaser; but this principle does not apply, where the inadequacy of price is caused, not by any fault on the part of the sheriff, tha plaintiff, or his attorney, but by the acts of the defendant himself, or of persons connected with him, and claiming under him by intermediate convoy-ances. 3. Purchase by plaintiff's attorney, at execution sale.-An attorney may, with~ out impropriety, represent hi~ client at a shei'iffs sale under execution, and buy in the property Ibx his client. 4. Declarajions of plctint4ff in exeontion, diselaiming purchase in his name.The declarations of the plaintiff in execution, made soon after the sheriff's sale, to the efibct that his attorney had bid off the lands for him without authority, and that he did not assert any claim to the lands under the purchase, would be admissible evidence for the defendant, on a motion to set aside the sale, as showing an excuse for his delay in making the motion; but they would also show his knowledge ot the sale, and oí the fact that the plaintiff was the purchaser; and the exclusion of the evidence would not be a reversible error, when it could not have changed the judgment on the motion. Appeal from tbe Circuit Court of Montgomery. Tried before tbe Hon. James Q. Smith. This was a motion to set aside a sheriff’s sale of lands under execution. Tbe judgment on wbicb tbe execution was issued, was rendered on tbe 26tb June, 1868, in favor of Erank Boy-kin, against Jacob Eabel and Jonathan E. Price. Tbe sale under execution was made on tbe 4tk October, 1869, tbe plaintiff in the judgment becoming bimself the purchaser, by bis attorney, at tbe price of $135. Tbe motion to set aside tbe sale was made by tbe defendant in execution, at tbe December term of said court, 1873. Tbe grounds on wbicb be sought to set it aside, as specified in the motion, were — 1st, that tbe judgment was void, because Price, one of tbe defendants, was dead at tbe time of its rendition; 2d, that tbe property was sold at a grossly inadeqate price ; 3d, that tbe execution was irregular, because combined with a writ of hab. fac. poss. On tbe evidence adduced, all of wbicb purports to be set out in tbe bill of exceptions, tbe court overruled and refused tbe motion; to which an exception was reserved by tbe said Eabel, and wbicb be now assigns as error. D. CloptoN, for tbe appellant. — 1. Tbe judgment, if not a nullity, was certainly irregular, since one of tbe defendants was dead at tbe time of its rendition; and tbe execution was equally irregular. Tbe plaintiff should have amended bis judgment, so as to have execution against Eabel alone. — Hood v. Mobile Br. Bank, 9 Ala. 335. 2. Tbe gross inadequacy of tbe price is, of itself, a sufficient reason for setting aside tbe sale. — Henderson v. Sublett, 21 Ala. 630; Lankford v. Jackson, 21 Ala. 653; Lee v. Davis, 16 Ala. 516. Tbe fact that tbe lands were bid off by tbe plaintiff’s attorney, who bad tbe management of tbe sale, furnishes an additional reason for setting it aside. — Lee v. Davis, 16 Ala. 516, and cases there cited. 3. The conveyance of tbe land by Eabel cannot be deemed a sufficient excuse for tbe inadequacy of tbe price bid. Tbe plaintiff should have cleared tbe title, by an appropriate proceeding, so that tbe land would bring a fair price. — Hall v. Hallett, 1 Cox, 134. 4. Tbe motion does not come too late. There was no necessity for tbe defendant to move in tbe matter, until bis possession was disturbed. — Abercrombie v. Conner, 10 Ala. 293. Tbe declarations of tbe plaintiff in execution, disclaiming all interest in tbe lands under tbe purchase by bis attorney, ought to have been received as evidence, as showing an excuse for tbe apparent delay in making tbe motion. Semple & Cooke, contra, insisted that Label could not be beard to complain of tbe inadequacy of price, because it was brought about by bis own conduct; and that be was not tbe proper party to make tbe motion, having conveyed away all bis interest in tbe lands before tbe sale, and being estopped from alleging tbe invalidity of bis own deeds. [MAJORITY — MANNING, J. —] MANNING, J. — This was a motion in tbe court below, to set aside and vacate a sheriff’s sale of valuable real estate in tbe city of Montgomery, to appellee, Boykin, as tbe property of Fabel. Two reasons why tbe motion should be granted are insisted on. Tbe first is, that of tbe two defendants against whom Boykin obtained tbe judgment, for tbe satisfaction of which this realty was sold, one of them, Price, was dead before tbe judgment was rendered. This would make tbe judgment void against him, but not against Fabel. If a motion bad been made to vacate it, as against Price, this would have been so done as to leave it in force against Fabel from tbe time of its rendition. — Hood v. Mobile Br. Bank, 9 Ala. 335. Such a motion not having been made, execution was properly issued, in conformity with tbe judgment, against both, though, as was legally proper, it was enforced only against tbe property of Fabel. — Thompson v. Bondurant & King, 15 Ala. 346; Martin v. Branch Bank at Decatur, 15 Ala. 587. Tbe other ground relied on is, that tbe property sold was worth very much more than tbe price it brought, which was only $135, while tbe value exceeded $7,000. Ordinarily, this would be a good reason for granting the motion. But this case is distinguishable from all of those cited for defendant, in this particular, that tbe smallness of tbe price dwelt upon was a consequence of tbe acts of Fabel himself, and of persons connected with him, and not of any fault in tbe conduct of Boykin, or bis attorney, or of the sheriff. Tbe judgment was for only $216 and costs. Before it was rendered, defendant Fabel bad executed deeds of tbe property, which were spread upon tbe records, to others, for sums, according to tbe recitals therein, amounting to $7,500. A first writ of execution bad been returned “ no property found.” Tbe alias writ, under which tbe sale was made, was issued more than a year after tbe judgment was rendered; during which time no payment was made. Tbe sale was advertised in tbe newspapers, and. made in one of tbe most public places in tbe city of Montgomery; and some one, when tbe property was offered — not Eabel, wbo was not present — forbid tbe sale. Tbe two years .witbin wbicb, according to the statute, a redemption of tbe land was allowable, were suffered to elapse, without any offer to redeem; and this motion to set aside tbe sale was instituted four years after tbe sale was made, without any security offered, or evidence adduced to create assurance, or induce tbe belief, that a larger sum would be obtained by a re-sale of tbe property; if, indeed, it shall not have been so disposed of further, in the meantime, as to preclude Boykin, wbo is plaintiff in tbe judgment, as well as purchaser of tbe property, from realizing anything therefrom. Who was in possession when it was sold, is not shown by tbe evidence. The motion is urged upon tbe idea, that Boykin would obtain by tbe purchase tbe entire real estate in question, at a grossly inadequate price. But this argument ignores tbe deeds wbicb Eabel has made, or assumes that they are void; an assumption which tbe record does not show to be well founded. We do not feel at liberty to suppose, what counsel for tbe motion do not admit, that tbe deeds were fraudulently made. Motions of this sort are of an equitable nature, and must be disposed of upon equitable principles. We do not think it would be consistent with these to set aside tbe sheriff’s sale in tbe present cause. — McCaskell v. Lee, 39 Ala. 131. We recognize tbe authority of tbe cases cited, in respect to purchases made by an attorney of a plaintiff' in execution, of property sold to satisfy it, whereby be obtains an unconscientious advantage; but they have no application to the case made by this record. There is no impropriety, according to our practice, in an attorney representing bis client at a sheriff’s sale of property to pay an execution in bis favor, and in merely purchasing tbe property for bis client. Tbe offer of Eabel to prove that, “ not long after tbe sheriff s sale, Boykin told him that tbe attorney had bid off said real estate without authority, and that be (Boykin) did not set up or assert any claim to said real estate,” might have been proper, to show an excuse for Eabel’s delay in making this motion; but it would have shown, also, that Eabel knew of tbe sale, and wbo was tbe purchaser. And it must be presumed that be knew further, that tbe purchaser of real estate, bolding a sheriff’s deed of it, did not retransfer tbe title, because, at a particular time, be “ did not set up or assert any claim” to it. The evidence, if given in, would not have entitled tbe mover to a different judgment upon bis motion. ' ■ ■ Let tbe order of tbe Circuit Court be affirmed. Stone, J. not sitting, having been of counsel.