Beckwith v. . Mining Co.Beckwith v. . Mining Co.
If His Honor had entertained the plaintiff’s motion, and in the exercisе of a legal discretion refused it upon'the ground that he did not undеr the circumstances of the case regard the inadequate price bid a sufficient reason for disturbing the sale, this court wоuld in all probability have felt itself bound to concur in that decision. As a general thing, mere inadequacy of consideration, standing alone and disconnected with any circumstance of fraud or surprise, is not a sufficient cause for setting aside a sale under execution. Sucn is the rule now generally adopted in thе courts, and, though it may sometimes work particular hardships, is found tо be best on the whole, as well for the parties as purchasers and the public, as tending to give certainty and stability to salеs under process issuing from the courts.
But still, inadequacy of pricе, if combined with any other circumstances calculated to throw suspicion upon the sale, or if in itself so gross as to be suggestive of mistake or undue advantage, may prevail with the cоurt from which the process issued, to dispense with the sale and оrder a resale; *158 and at all events, a party complаining of it has a right to have the facts ascertained, in order that the court may act understanding^ in the matter.
Now, as we understand the ruling in the court below, His Honor declined out and out to consider the plaintiff’s motion or to hear the evidence tendered in support of it, holding it to be a conclusion of the law, that under no circumstances can a plaintiff, at whose instance a judgment has been rendered and an execution issued, be hеard to complain of the sa[e because of its inadequacy, however gross or glaring it may be.
We know of no authority going to support the distinction, which His Honor seems to make, betwеen a plaintiff and any other party who may be interested in the matter. On the contrary, it is said in' Freeman on Executions, § 305, that “ the рlaintiff, the defendant, and the purchaser, may each be аggrieved by a sale under execution, and therefore eаch is entitled to prosecute a motion to set it aside-;’’ and upon a reference to the adjudged cases upоn the subject, we find that in a large number of them theimotion to set aside came from the plaintiffs in. the judgments, at whose instance thе executions had issued. For this error the judgment must be reversed, though wе confess we have reached this conclusion after сonsiderable hesitation.
There seems to be no suggestion of fraud in the case, nor of any circumstance of surprise оr undue advantage, and if permitted, therefore, to examine for ourselves the affidavits filed, we might be able to see that His Honor’s ruling was in fact right, though 'supported by an iucorrect reason. But this court, in such a case as this, cannot consider the evidеnce, but must act exclusively upon the facts as found in the court below, and the error consists in finding no facts, either for its own guidance or the guidance of this court.' The only legal propоsition declared by His Honor is, as we have seen, unsupported by the authorities. There is error. Reversed.