36 Kan. 437 | Kan. | 1887
The opinion of the court was delivered by
Frank E. Canfield and Mary E. Canfield procured a loan of $300 from George Babcock on 160 acres of land in Norton county, which they owned. The mortgage was negotiated by the J. B. Watkins Land Mortgage Company, of Lawrence. The mortgagors made default in payment, and in an action begun by Babcock, a judgment and decree of foreclosure was obtained on October 8, 1883. The land was sold under this decree on the 23d day of February, 1885, to Hugh McCredie, for $180. On the 16th day of April, 1885, the plaintiff moved'the court to set aside the sale, and at the same time there was a motion made by the purchaser to confirm the sale. The first motion was overruled and the last allowed; and these rulings are the causes of complaint in this court. The only ground relied on by the plaintiff for the interference of the court is the inadequacy of price and the failure of his agent to bid at the sale. From the record we learn that on February 20, the J. B. Watkins Land Mortgage Company wrote a letter to L. H. Thompson, of Norton, one of plaintiff's attorneys, requesting him to attend the sale and bid, in the name of J. B. Watkins, $200, and if there was competition at the sale, to bid up to
The rulings of the district court cannot be held erroneous. The defendants made no objection to the sale. There was no defect in the notice, nor any irregularity in conducting the sale. No mistake, neglect or misconduct is charged against the sheriff ; nor is it claimed that there was any unfairness or fraud on the part of the purchaser; he appears to have made the purchase openly and in good faith. It is true that the price paid was considerably less than the actual value, but it was not so grossly inadequate as of itself to indicate fraud or call for the interference of the court. It appears that on December 2, 1884, the property was sold by the sheriff under the same.decree for $200, but by reason of a clerical error as to the name of the defendants in the order of sale, a re-sale was made necessary. Then, again, $200 was the amount that Thompson was instructed to bid in case no competitive bidders appeared. Inadequacy of price alone is rarely ever sufficient to warrant the vacation of a sale, although this ground, connected with some others, is sometimes sufficient. (Capital Bank v. Huntoon, 35 Kas. 591, and the cases there cited.) But we do not think that the circumstance relied on here, which is the neglect of the plaintiff’s agent to appear and bid at the sale, is sufficient to justify its vacation. It appears that only two days intervened between the time that the letter of instructions was written to Thompson and the time of sale, and Lawrence, where the letter was written, is distant from Norton, the place of sale, about three hundred miles. The letter was received by Thompson before the sale was made, but not sufficiently early to enable him to arrange his business so that he could attend the sale in person. It does not appear whether Miller, who was requested to attend the sale by plaintiff’s at
The orders of the district court complained of must therefore be affirmed.