80 P. 365 | Ariz. | 1905
J. C. Forest, as plaintiff, brought an action in the district court of Yavapai County against J. J. Brooks, in which, on November 9, 1903, he recovered a judgment against said defendant for the sum of $273.83 and costs. There had been a writ of garnishment issued in said action and served upon the Bannie Gold Mining and Milling Company, an Arizona corporation. From the answer of the garnishee it appeared that the defendant, Brooks, was the owner of three hundred and forty-seven thousand shares of the capital stock of said company, and on November 11, 1903, the court decreed the sale of the defendant’s stock in
The appellant, conceding the inadequacy of the selling price, contends that this alone is insufficient to authorize the setting aside of an execution sale, and relies upon the point that the district court did not affirmatively find that there existed any fraud, irregularity, or misconduct in the sale. The issues of fact upon which the statute [Rev. Stats. Ariz. 1901, par. 1406] requires findings to be made by the trial court are those issues which arise upon pleadings. A motion is not a pleading under our statute, and it was not incumbent upon the court, in giving its decision, to declare its determination upon every controverted question of fact presented by the affidavits. We would not be justified in disturbing the order here appealed from if there is evidence in the record to sustain the facts upon which that order could properly be based. An examination of the authorities will show that the courts hesitate to declare inadequacy of the selling price a sufficient ground in itself for vacating an execution or judicial sale. Treating of this topic, Mr. Freeman, in his work on Executions, after reviewing the authorities, says: “So far as any general rule has been formulated upon the subject, it seems to be this: ‘That mere inadequacy of price, where parties stand on an equal footing, and there are no confidential relations between them, is not, of itself, sufficient to set aside a sale unless the inadequacy is so gross as to be proof of fraud, or to shock the judgment and the conscience.’ ’,’ Freeman on Executions, 3d ed., see. 3041. If the inadequacy can be connected with or shown to result from any mistake, accident, surprise, misconduct, fraud, or irregularity, the sale will generally be vacated. Id., sec. 309. And in the same section the learned author observes: “We think the better rule is that inadequacy of price may be so gross as to create the presumption of fraud or misconduct on the part of the officer or the purchaser.” It was said by the supreme court of Alabama, in
The record discloses no error, and the order appealed from will be affirmed.