Northrop v. Cooper

23 Kan. 432 | Kan. | 1880

The opinion of the court was delivered by

Brewer., J.:

After a decree had been properly entered, foreclosing a mortgage, an order of sale was issued, the property advertised for sale, and sold to S. S. Cooper for $100. After the sale, both mortgagor and mortgagee file motions to set aside, while the purchaser files one to confirm the sale. The latter is sustained and the former overruled, and upon these rulings the plaintiffs in error come to this court.

The first question is as to the publication of the notice of sale. It is claimed that this was not continued for a sufficient length of time. The first publication was October 13th, and the sale November 12th. This, excluding the day of sale, would give thirty days’ publication; excluding both the day of sale and the first day of publication, would leave only twenty-nine days. The statute requires publication “for at least thirty days before the day of sale.” This, counsel contend, requires that thirty full days elapse between the day of the first publication and the day of sale; and they rely upon the case of Garvin v. Jennerson, 20 Kas. 371, in which this court decided that under a statute requiring a deposition to be “filed at least one day before the day of trial,” a full day must intervene between the day upon which the deposition- was filed, and that upon which the trial is commenced. The distinction is this: the filing of the deposition is a single and instantaneous, the publication a repeated and continuous, act-. So, when- the statute requires that a deposition be filed at least one day before the day of trial, it means that that single act shall be done and completed at least one day before, but the act of publication is not completed at least thirty days before, but only commenced then, and continues from its commencement up to the day of sale. We had occasion to notice this language in the case of McCurdy v. Baker, 11 Has. 111, and held that the word “for” required a continuous publication — the word “for” being used in the sense of “ during,” so that the publication must be during at least thirty days, and continued up to the day of sale. The first publication is no more than any other. The argument would be just as strong that thirty full days must intervene between the day of the last publication and the day of sale, as that it must intervene between the day of the first publication and that of the sale. Indeed, it would be stronger, for that would be treating the publication as a single act, and to be completed at least thirty days before, while the other treats it as a continuous act, part of which is to be performed and part not, at least thirty days before the day of sale. Here there were thirty days of publication before the day of sale. The notice was therefore published “for at least thirty days before the day of sale,” and the motion to set aside the sale upon this ground was properly overruled. See the case of Hagerman v. O. B. & S. Asso’n, 25 Ohio St. 186, in which a similar construction is put upon these words, and the day of the first publication held to be included within the required thirty days.

Secondly, it is contended that the notice was defective in not fixing the precise time of the sale. It read: “On Monday, the 12th day of November, 1877, between the hours of 10 o’clock a. M. and 4 o’clock p. m. of that day,” etc. We think such a notice sufficient. It is not essential that the precise hour be named. It may be that if it were shown that any person appeared at any time between the specified limits ready io bid, and that the property was struck off at less than its value, the court should in its discretion set aside the sale; but nothing of the kind appears here. The motion is rested upon the supposed defect iii the notice, and without a suggestion even that any one was misled, or desired to bid. Counsel cite the case of Trustees, etc., v. Snells, 19 Ill. 156, in which a sale -was set aside when it appeared that the property had been sold at an enormous sacrifice, and that the notice simply stated that on a given day the sale would be made; yet that very case-recognizes the propriety of a notice like the one before us. In the opinion the court says: “ The object of a public sale is,, by fairness and competition to evolve the full value of the property exposed, and produce that value in the form of money. This can, as a general rule, only be done by making the sale at a convenient or public place, accessible to bidders, and during the ordinary business hours of the day. The notice-should have stated the hour of sale, or that the sale would be made between certain named hours of the business portion of the day.” We think a better practice would be to have the-notice state the precise hour of sale, and if in any case injury is shown to have resulted to either judgment debtor or creditor from a failure to state such precise hour, the sale should be set aside; but where the notice states that the sale will be-made between certain named hours of the business portion of the day, the sale ought not to be set aside upon a mere possibility of injury from such notice.

A third objection is, that the order of sale was defective im not stating the rate of interest which the judgment bore. It in fact bore twelve per cent, interest. We do not think this vitiates the order or the proceedings under the order. The-amount for which the property was sold was far below that of the judgment, and a'mere irregularity which does no one-the slightest injury should not work an entire overthrow of' proceedings had under the order.

A fourth matter is, that the order of sale did not specifically direct that the sale be made without appraisement.. The-judgment and decree so directed, but the order directed that, the property be “advertised and sold according to law.”' This too, if ,a defect at all, is not one sufficient to justify a setting aside of the sale. The decree directed a sale without appraisement, the law authorized such a decree, and the sale was so made. It was therefore made according to law.

A final matter is, the inadequacy of the bid. The property was sold for $100. Several affidavits were read. The value of the land, according to the average judgment of plaintiff’s witnesses, was $933, and according to that of the purchaser’s witnesses was $565. Clearly, then, the property was struck off for a sum far below its actual value. Is this sufficient to justify the setting aside of the sale? No excuse is shown for the absence of plaintiff or defendant in the judgment at the time of sale. There is nothing to show that, they were ignorant of or misinformed as to the time, or that they were prevented from attending, or even that they purposed or desired to attend. So that as the case stands before us, the parties interested, knowing of the sale, intentionally stayed away and took the chances of other parties offering full value, and when disappointed in this expectation, and after the property had been struck off to a party bidding in good faith, come into court and ask that the sale be set. aside because the sale had not been for anything like the real value. In other words, at their instance the property is put. up to be sold to the highest bidder, and when it is so sold they complain because such bidder did not bid more. It was-the officer’s duty to strike it off to the highest bidder, a. duty they had called upon him to perform. He acted in good faith. The purchaser acted in the same good faith. He offered what he was willing to give. He was under neither legal nor moral obligation to offer more, and the property was struck off to him at his bid. There was nothing in the conduct of the officer or purchaser to justify a court of equity in depriving the latter of the benefits of his purchase. And when the parties interested, with full knowledge, deliberately let the matter go by default, what right have they to ask a court of equity to interfere ? The result has followed from their own laches and indifference. The case is very different from that of Dewey v. Linscott, 20 Kas. 684, which is referred to by counsel. There the creditor made reasonable efforts to be represented at the sale, but failed through no fault of his. His misfortune, after proper endeavor, was a basis for the interference of a court of equity. Here there was no effort, and the absence was voluntary. In that case we said: “Now if the plaintiff, being present at the sale, had made no bid, or, if aware of the sale, he had made no effort to attend or be represented, or had been culpably negligent in his efforts therefor, or if after sale he had unreasonably delayed in making his application to the court, so that there was in fact nothing but the mere inadequacy of the price as a ground for his application, the court might perhaps fairly say that there was no ground for interference.” The views thus expressed we reaffirm. Here there is mere inadequacy of price, and not such inadequacy as of itself is sufficient to justify a court in disturbing the sale. Indeed, it is doubtful whether mere inadequacy would ever be sufficient of itself to justify the setting aside of a sale. If the creditor was present and saw the property going at a sacrifice without bidding himself, he would not be permitted to complain of the inadequacy of the price, and avoid the sale. And if knowing of the sale he voluntarily stays away, and takes the chances of others bidding full value, he is in but little better position to complain. It is for the interest of debtors and creditors alike, that public .sales be upheld. They will be more attended, and better prices obtained. New will care to bid, if, after bidding in good faith, having the property struck off to them, and their money paid to the officer, they have to run the gauntlet of an inquiry into the sufficiency of their bid. Sales purporting to be to the highest bidder should be so made, and the highest bidder acting in good faith should have a guaranty that his bid will obtain the property, even though he may not have bid as much as some may think the property worth. Rut it is unnecessary to decide that no inadequacy is great enough to avoid the sale; it is sufficient to say that that appearing in this case is not.

We see no error in the ruling of the district court, and it will be affirmed.

All the Justices concurring.