Norma Mining Co. v. Mackay

258 F. 914 | 9th Cir. | 1919

HUNT, Circuit Judge

(after stating the facts as above). [1] We think that the notice was sufficient. The day and place of sale were given, and it was published that the sale would be between the legal hours of sale. The law fixed the legal hours as between 10 a.-m. and 4 p. m., and the presumption is that the sale was had between such hours. In Burr et al. v. Borden, 61 Ill. 389, where a sale was made under a mortgage contract, it was announced that sale would be held “on the first of March, 1860, between the hours of nine a. m. and four p. m.” Upon objection to such an advertisement, the court held that it was sufficient, and said:

“Persons who see the advertisement and desire to attend the sale can easily ascertain the hour hy inquiring of the parties about to make the sale. If unwilling to wait at the appointed place, and if deceived by them and prevented from making the desired bid, the sale might be set aside. To require the advertisement to name the precise hour would lead to much practical inconvenience, and often necessitate a postponement of the sale. It is sometimes very desirable for the interests of the debtor to delay a sale for two or three hours in order to await the arrival of persons expected to bid; or, in consequence of a storm or some other unforeseen emergency. Moreover, if a particular hour were named in all cases, the question whether the sale had been held at the hour named would be a fruitful source of litigation. The mode adopted in this case has been so generally in use as the most convenient mode, and has been so free from any evil consequences, that we are not inclined to hold an advertisement in this form to be, of itself, a sufficient reason for setting aside a sale, the hours named being within the ordinary business hours of day.”

In Evans v. Roberson, 92 Mo. 192, 4 S. W. 941, 1 Am. St. Rep. 701, sale of real estate was advertised to be held between the “lawful hours” .of the day. The court held that the law fixed the hours of the day between which property must be sold, and that it was not necessary that the hour should be stated in the advertisement. Fitzpatrick v. Fitzpatrick, 6 R. I. 64, 75 Am. Dec. 681, cited by appellant is not pertinent because there the notice of sale bore no signature and gave no time or place of sale. In Bondurant v. Bondurant, 251 Ill. 324, 96 N. E. 306, the court refers to the statute as one which prohibits the sale unless the time of day is specified in the notice. In Jensen v. Andrews, 39 S. D. 104, 163 N. W. 571, the notice of sale recited that the property would be sold at the front door of the courthouse “on Saturday, the 14th day of February, 1914,” etc. The court held the notice fatally defective because of failure to specify the hour of the day at which the sale would take place. The statute of - South Dakota (Code Civ. Proc.) § 640, prescribes that the notice shall specify the time and place of sale, and that sale must be between the hours of 9 o’clock in the forenoon and the setting of the sun on that day. The Arizona statute quoted in the statement does not contain a requirement that the notice shall specify the time and place of sale, although the general provision is that sale shall be between the hours of 10 o’clock a. m. and 4 o’clock p. m.

We' cannot find that the notice complained of was inherently defective, and in the absence of a substantial showing of probable prejudice to the rights of the appellant, we believe that the court was right in refusing to hold the notice • insufficient.

[2] Appellant contends that the notice did not describe the property to be sold with sufficient certainty. But the description included within the notice is exactly as given in the mortgage under which the sale was made, and was sufficient.

[3] It is said that the consideration paid was inadequate. The property involved was first sold under decree of court on the 18th day of May, 1916, but, upon showing made by appellant that if a resale were had the property would probably sell for more, the first sale was set aside and another sale was ordered by the court. At the first sale Mac-kay, appellee herein, bought the property, paying therefor the amount of the judgment and costs. Now, two years later, the property has again been sold to Mackay, appellee, ior tlie amount of the judgment and costs and interest due at the time of the last sale. Appellant, in the motion to set aside the last sale, sets forth that in June, 1918, when the sale was made, the United States government was endeavoring to sell bonds for war purposes, and that the condition of the money market made it difficult to interest people in the purchase of property, and that the price paid was grossly inadequate. The support for the alleged inadequacy of price is an affidavit made in 1916 by an experienced mining man who deposed that he knew the property, and that in his opinion in 1916 it had a value in excess of $100,000, and that since that time the value of mining machinery and silver mining prop - erty had greatly Increased. The affidavit gives no detailed facts upon which the opinion as to the value rests.

The showing did uot appeal to the District Court as sufficient for ordering another sale, and fails to impress us with the belief that the District Court erred in its action.

The matter of sale was long protracted, and we find no valid reason for holding that the order of confirmation last made should be disturbed. Pewabic Mining Co. v. Mason, 145 U. S 349, 12 Sup. Ct. 887, 36 L. Ed. 732.

The order denying the motion to vacate the sale is affirmed.