Ray's Adm'r v. Womble, 56 Ala. 32

Ray's Adm'r v. Womble

56 Ala. 32 | Ala. | 1876

BEICKELL, C. J.

The amended bill presented a different case from that stated in the original bill, entitling the complainant to different relief; and it was, for that cause, if not for others, subject to the demurrer interposed. In the case of Lockett v. Hurt, at the present term, we passed on an original bill, seeking relief on alternative statements, similar to the statements found in the original and amended bills filed in this cause, without an inquiry into the inconsistency and repugnancy of the case presented, because the statute confines attention to the causes of demurrer specially assigned, and the assignments of demurrer did not embrace *37such cause. An amendment is a mere continuation of the original, and with it constitutes but one bill. Its office, when it is not, under our statute, resorted to for the purpose of introducing supplemental matter, is the curing of defects or omissions in the original bill, and not the introduction of new matter, varying the relief prayed, or the right in which it is claimed.' — McKinley v. Irvine, 13 Ala. 682; Crabb v. Thomas, 25 Ala. 212; Williams v. Barnes, 28 Ala. 613. Further consideration of the amended bill is unnecessary. The complainant’s case must depend on the original bill entirely.

2. The Circuit Court unquestionably had power to vacate the sales of the lands. If irregularity in the conduct of the officer making them was the only ground- for setting them aside, and no cause for equitable interference existed, the jurisdiction of that court would be exclusive. Not only irregularity, but a sale for a price so grossly inadequate as to be inconsistent with good faith on the part of the officer and the purchaser, creating the presumption of fraud, is averred. The sale was followed by the execution of deeds by the sheriff, which are a cloud on the title, the cancellation of which is within the exclusive jurisdiction of a court of equity. The power of the court of law would be exhausted, when the sale was vacated. The deed would remain in the possession of the purchaser, and could, at any time, be used as evidence by him in an action for the recovery of the lands, compelling the complainant, or those claiming under him, to introduce the evidence of the vacation of the sale, to repel its operation and effect as evidence of title. The remedy at law is not, therefore, adequate, and a court of equity had jurisdiction of the case made by the original bill. — Lockett v. Hurt, at the present term.

3. Mere irregularities in sales by the sheriff, such as a failure to give the statutory notice of the time and place of sale, will not authorize the vacating them, nor affect the title of the purchaser. If, however, such irregularities are followed by a sale, manifestly injurious to the parties to the process, or either of them, they are to be considered, in determining whether the. sale shall stand or be vacated. There were, certainly, inexcusable irregularities in the advertisement of the first sale, of which complaint is made; such irregularities as the public would regard as rendering it uncertain whether there would be a sale, and would excite suspicion of its fairness. These are followed by the sale of a quarter-section of land, which the evidence shows to have been of the value of one thousand dollars at least, for the sum of ten dollars, probably the only bid made. Inadequacy of price, not sufficient to create the presumption of fraud, *38will not vitiate a judicial sale, as it would not a private sale between individuals, of which mutual agreement is the controlling element. When, however, the sale is attended by-irregularities in the line of conduct to be observed by the officer making it, and is, of itself, a breach of official duty, the inadequacy of consideration is conclusive against its validity. While it is the policy of the law to protect purchases at judicial sales, and to inspire confidence in their validity, it is equally its policy to prevent such sales from being perverted into instrumentalities of oppression, and confiscation of men’s estates. It -was the clear duty of the sheriff, in which he would have been fully protected, to have postponed the sale; returning the execution, stating the facts, and that the lands had not been sold for the want of bidders. Powell v. Governor, 9 Ala. 36; Lankford v. Jackson, 21 Ala. 650; Henderson v. Sublett, 21 Ala. 626. The sale, under the facts appearing in the record, was mere spoliation, and not the execution of the process of the court. There can be no hesitancy in pronouncing it invalid, and decreeing its vacation, and a cancellation of the deed of the sheriff. The purchaser was bound to know, if he knew the value of the land, that it was a breach of the duty of the sheriff, and could not be sanctioned by the courts. It is presumable he had knowledge of the value of the landj or, if he did not, he was engaging in a speculation in which gain might be very large, wdrile the loss, if loss followed, would be inconsiderable. In neither attitude, is he entitled to the favorable consideration of the court.

4. A sale of other property was, by this sacrifice of the land levied on, necessary to the satisfaction of the execution; and it was immediately, on the day of sale, levied on the defendant’s equity of redemption in an adjoining quarter-section of land. The two quarter-sections composed the farm, or plantation, on -which the defendant resided. The deed of trust incumbering this land was a security for a debt due to Oates, the purchaser, not exceeding in amount four hundred dollars. The value of the land was not less than eighteen hundred dollars. It is not averred in the answer that the debt secured by the deed of trust was not paid by the defendant in execution, before any steps were taken by Oates to disturb him in the possession, more than two years after the sale, and when the period for statutory redemption had expired. Oates, the cestui que trust in the deed of trust, standing to the defendant in execution in the relation of mortgagee, becomes the purchaser of the equity of redemption, for the sum of two hundred dollars, very nearly, if not the exact sum necessary to satisfy the execution, and to *39silence any clamor by the plaintiff in that process. Thus he becomes the purchaser, for a merely nominal sum, of the quarter-section which was not incumbered, and for the quarter-section which was incumbered, bids twenty times that sum, though there is no such disparity in their relative value, nor is there shown to have been at the last sale any rivalry in the bidding, which produced the result.

It is not possible to lay down any definite rule, by which to determine the cases in which courts will intervene to vacate judicial sales; because of the disparity between the price and the value of the thing sold. When, as in the first sale, which we have declared should be vacated, the price is merely nominal, such as the officer can not in good faith accept, there is no difficulty. Other cases must depend, in a great degree, on their own peculiar facts and circumstances. The value of the equity of redemption was, probably, fourteen hundred dollars. In the absence of all unfairness, or oppression, or irregularity, we would hesitate to affirm that the inadequacy of the sum bid would compel a vacation of the sale. The facts and circumstances of this case induce the presumption of a formed design, on the part of the purchaser, to acquire the lands at much less than their real value, and to accomplish that end by faking advantage of the necessir tous condition of the defendant in execution. This presumption is not weakened, or repelled, by any fact found in the pleadings or evidence. The first sale, at which he was most probably the only bidder, and the purchaser for a mere nominal sum, which was a palpable violation of the duty of the sheriff, is followed by an immediate levy, on the lands which were incumbered by the deed of trust, in which he was the sole beneficiary. At the second sale, he purchases the incumbered lands, bidding twenty times the sum bid for the unincumbered lands; certainly not because of the disparity in value of the two tracts, nor, so far as appears, because of any rivalry in-the bidding. The correspondence between the sum bid and the sum necessary to satisfy the execution, leads to the supposition that it was to quiet the plaintiff in execution, and prevent any inquiry into, and controversy over the sales, from that quarter. The necessities and embarrassed condition of the debtor, over whom the deed of trust was suspended, would keep him quiet, while he indulged the hope of redeeming the lands. Without rent, or a claim of rent, for more than two years, the debtor remains in undisturbed possession of the lands, though the law-day of the deed of trust had expired; and if the sale under execution was valid, Oates’s title was perfect, entitling him to possession and the rents and profits. The lapse of- time barring *40the statutory right of redemption, and the debts secured by the deed of trust having been paid, title to the lands is asserted, and legal proceedings for the recovery of possession commenced. No explanation of this delay is attempted.

If a mortgagee had made a direct purchase, by private contract, of the equity of redemption from the mortgagor, who was harassed by execution, and seeking relief from present pressure, at a price so inadequate as that paid by Oates at the sheriff’s sale, a court of equity would not hesitate to set aside the transaction. All such transactions are watched with jealousy, and if not marked by the utmost good faith, and supported by an adequate consideration, are relieved against, if timely complaint is made.' — Holridge v. Gillespie, 2 Johns. Ch. 30; Henry v. Davis, 7 Johns. Ch. 40. The rule may not be applicable, in all its strictness, to purchases by the mortgagee, at sheriff’s sale, of the equity of redemption under an execution in favor of a stranger. Such purchases must, however, be narrowly watched, or mortgages will become oppressive, and through their means, the advantages they give the mortgagee, and the power they confer, lands will be sacrificed to avarice and selfishness. "When such a purchase is attended by circumstances like those attending this purchase, indicating a formed design to profit by the embarrassments of the mortgagor, and to acquire his lands for a sum wholly inadequate, when compared with the value, the sale should not be permitted to stand.

5. If it should be conceded the original bill is demurrable, because it does not contain an offer to pay the purchase-money, paid by the purchaser at the sheriff’s sale, the demurrer, no action having been taken on it, was waived by the answer subsequently filed, in which it was not incorporated.' — Story’s Eq. PI. § 688.

6. The purchaser is certainly entitled to a return of the purchase-money; and if it was applied to the satisfaction of the execution, the decree vacating the sale must secure it to him, with interest. We must not be understood as intimating that it was essential to the equity of the bill that the complainant should have offered to refund the purchase-money. The sale was compulsory, and the complainant had not received money of the purchaser, on a contract made between them. This distinguished the ease, from that class of cases in which a complainant, seeking a rescission of a contract, because of fraud or mistake, must offer to place the party with whom he dealt in statu quo, before a court of equity will be active for his relief. A resale of the lands was the legal right of the complainant, though he was unable to repay the purchaser the money he had expended. The court, *41in decreeing tbe vacation of tbe first sale, and ordering a resale, if necessary, because of tbe inability of tbe complainant to refund tbe purcbase-money, would, of course, fully protect tbe purchaser. But it could not be tolerated, tbat a judicial sale, tainted with fraud, and a breach of official duty, oppressive, and grossly unjust to an unfortunate debtor — a mere sacrifice of valuable property — should be permitted to stand, because of tbe debtor’s inability to refund tbe purcbasemoney, insignificant in amount as it may be.

Tbe chancellor dismissed tbe original bill, because tbe complainant’s remedy was at law. While we concur in tbe opinion tbat there was a remedy at law, by motion to tbe court from which tbe execution issuedj for a vacation of tbe sale, there is, also, a more adequate remedy in equity, in which full relief, foreclosing all future litigation, or opportunity for it, can be afforded.

Tbe decree of the chancellor is reversed, and tbe cause remanded, for further proceedings not inconsistent with this opinion.