Harris v. Stevenson, 41 So. 1008

Harris v. Stevenson

41 So. 1008 | Ala. | 1906

ANDERSON, J.

After a sale of property under a decree of the chancery court and a confirmation of said sale, the sale will not he set aside upon a collateral proceeding unless the party seeking relief against said sale acquits himself of want of diligence in resisting confirmation. “When he will stand acquitted depends upon all the circumstances of the particular case. While tlie court is unwilling that- its decree or process shall be employed to work illegality, injustice, or oppression, and willingly intervenes to rectify a misuse or abuse of either by restoring parties to the condition in -which they were *542before the wrongs occurred, it is only the diligent they are active to serve.” — Sayre v. Elyton Land Co., 73 Ala. 101; Watson v. Tromble, 29 Am. St. Rep. 495, and note. The bill in the case at bar does not aver any effort on the part of the complainant to resist the confirmation of the sale by the chancery court or set up any sufficient excuse for the failure to do so, and the demurrer proceeding upon this theory should have been sustained.

The bill seeks to set aside the sale made under execution of November 23, 1893, because the price was, inadequate, hut shows upon its face that the amount paid at said sale was not inadequate. It is true that the sale included all of the tract, but the bill shows upon its face that the most valuable part thereof had been previously sold, under the chancery sale, which had been confirmed, and-there is nothing in the bill to negative the fact that the amount bid at the execution sale was less than the Amine of the. land sold, which Avas not covered by the chancery sale. The demurrer in this respect should have been sustained.

It is needless to consider the Amlidity of the sale made in Ma.y, 1903, as it would be futile to order a resale of the lands then sold, as they Avere included in the sale made in NoAumiber, Avlxich said last sale the bill does not satisfactorily impeach. “There can be no equity in a bill Avhicli seeks to do a Amin and useless thing.” — Gardner v. Knight, 124, Ala. 278, 27 South. 298.

We do not ihink that the levy and sale under the execution sale of November, 1893, divested the appellant Harris of the right and title he acquired under the chancery sale, upon the doctrine of estoppel. As a rule the levy upon and sale of property by a person estops him from denying that, the other has a leviable interest therein. But we do not understand this doctrine to extend to a divestiture of rights under previous sales, made under different processes. On the other hand, a party could never increase or improve his title by purchasing at subsequent sales, Avithout relinquishing under a former purchase, if such a contention be sound.

According to appellee’s contention the purchaser at a mortgage foreclosure sale could not sell the equity of *543redemption of the mortgagor, or purchase the same under an execution sale, without annulling his title under the foreclosure sale. In the case at bar all the land had not been s'old under the first sale, and the said Harris had the right to subject the other land to the satisfaction of his execution, and the fact that it was levied upon and sold in its entirety in no' way estopped him from claiming under the chancery sale so much of the land as was thereby conveyed to him under said chancery sale.

The decree of the chancellor is reversed, and a decree is here rendered sustaining the demurrer to the hill.

Reversed and rendered.

Weakley, (\ J., and Tyson and Simpson, JJ., concur