| Or. | Oct 23, 1893
Lead Opinion
delivered the opinion of the court:
1. It is manifest the complaint does not state facts sufficient to constitute a cause of suit, and the demurrer was properly sustained. It is sought by this suit to set aside an execution sale of real property, on the ground of inadequate price and irregularities in the proceedings subsequent to the decree upon which the sale was made. The allegation that the defendant Brown had knowledge of and participated in the proceedings with the purpose of obtaining the land at an inadequate and unfair price, is too vague and uncertain to charge fraud; and, besides, the complaint does not show that the plaintiff Leinenweber could not have prevented the sale by a motion in the court below to quash the execution, or by objections to the confirmation of sale, and having failed to press her objections at the proper time, or to show that she was prevented from so doing by fraud or deception, she is not entitled to relief by an independent suit: Black, Judgments, § 370. The plaintiff had a right to and could have appeared in the original suit and moved to quash the execution, or filed objections to the confirmation of the sale for the reasons stated and alleged in the complaint, all which, so far as appears, she failed and neglected to do; nor does she offer any excuse for such failure except her absence from the state, and that certainly does not. present sufficient ground for relief in this suit.
2. The defects, if any, in the execution under which the sale was made, were but mere irregularities which did not render it void, and should have been taken advantage of by a motion to quash, and the law has long been settled in this state that an order or decree of confirmation of an execution sale must be regarded as a conclusive determination of all questions concerning the irregularity
Rehearing
On Rehearing.
[November 13,1893.]
Since the opinion was filed in this case, but before the entry of a decree, our attention has been called to the fact, by the petition of the plaintiffs, that the court below not only sustained a demurrer to and dismissed the amended complaint, but it further adjudged and decreed that “the defendant Hiram Brown is the owner in fee simple of all the land set forth and described in the amended complaint of the plaintiff herein.” This was clearly an error. The case was disposed of both by the court below and in this court upon the ground that the complaint did not state facts sufficient to constitute a cause of suit, and was therefore dismissed, and the only decree that should have been entered was a decree to that effect. It follows, therefore, that in entering a decree in this case the determination of the lower court will be affirmed, except as to the clause above quoted, and a decree entered here dismissing the complaint. Affirmed.