21 Ala. 626 | Ala. | 1852
— 'Two questions present themselves in this case: 1st. Was tbe conduct of tbe sheriff in tbe levy and sale, under tbe executions in his bands, of such a character as to authorize tbe Circuit Court to set aside tbe sale, and vacate and annul tbe deed made to tbe purchaser ? 2d. Have the plaintiffs in this motion such an interest in tbe lands sold, as to entitle them to come in and make tbe motion ?
An expression, however, occurs in tbe opinion of tbe court, in tbe case of Lee v. Davis et al., supra, which, without some explanation and limitation, cannot command our assent. It is this: “ Inadequacy of price may not be sufficient cause for setting aside a sale of land under execution; but when coupled with other circumstances, it has induced tbe courts to avoid tbe purchase.” We readily concede, that every inadequacy of price will not be sufficient to set aside a sale of lands under execution; but when tbe inadequacy is so glaring and gross, as at once to shock tbe understanding and conscience of an honest and just man, it will, of itself, authorize tbe court to set aside tbe sale. For instance, if, as in the case under consideration, a tract of land of tbe value of $1800 is sold for $5, the court out of which tbe execution issued should not hesitate to set aside tbe sale for this cause alone. In all such cases, tbe sheriff should not proceed with tbe sale, but return tbQfi.fa. levied, but tbe property not sold for want of buyers, and wait for a venditioni exponas.
It would be difficult to lay down a general rule on this subject, which would adapt itself to all cases. The one just sug
The practice suggested above has long since obtained in. England; and if the sheriff, after having levied on property of sufficient value to satisfy the fi. fa. fails to observe it, and sacrifices the property by selling it at a sum greatly below its value, and insufficient to pay the plaintiff’s-demand, the courts there have compelled him to satisfy, out of his own means, the sum remaining unpaid. Keightly v. Birch et al, 3 Camp. 521. See, also, the case of Lankford v. Jackson et al., decided at the present term, in which the English authorities are collated by Chief Justice Chilton.
In the case of Lee v. Davis et al., heretofore cited, it was held: “That where the injury complained of is in the execution of the process, and not for a defect in the process itself, it is competent for any person whose interests are thereby prejudiced, to move the court to avoid the sale.”
That these plaintiffs have an interest in the lands sold, can scarcely be seriously questioned. Lindsay, the defendant in the executions, conveyed these lands to Houston, in the year 1842, in trust for the benefit of Hindman and McCollom, who were his sureties on his bond as guardian for these plaintiffs. The record shows, that his guardian’s accounts are still unset-
These views do not militate against the decision of this court in the case of Nuchols v. Mahone, 15 Ala. 212, to which we have been referred by the counsel for the defendants. The questions in the two cases are essentially different, and the results to the parties, arising out of the judgment of the court in setting aside the sale, wholly dissimilar. In that case, the objection to the fi. fa. was, that it was issued after the death of the defendant, and went to the process itself, and not to the abuse of it in its execution. A latent defect in th efi.fa., although sufficient to render it void ab initio, cannot be regarded as an abuse of the authority of the sheriff, or in any manner enter into its execution, where the officer has only followed its mandate. A purchaser under it would take no title, and those whose interests are apparently affected by it may show the process itself to be void, and thus successfully defend themselves at law, against any right which the purchaser under it might attempt to set up against them. In the present case, the objection goes alone to the execution of the process, and the objection is such as could not avail the parties injured in any action involving the title to the land. Lee v. Davis, supra.
Our conclusion is, that the court below erred in repudiating the motion. Its judgment is therefore reversed, and the cause remanded, that it may be proceeded in according to the prin