12 Ky. Op. 317 | Ky. Ct. App. | 1883
Opinion by
The eight assignments of error may be reduced to three heads of complaint, to-wit:
1. That the land sold to pay the mortgage debt was not advertised as directed by the decree.
2. That the price for which the land sold was inadequate.
3. That appellee, the purchaser, did.not execute bond.
As to the first point, the decree directed the marshal to advertise the sale by posting a notice on the courthouse door and one “on or near the' premises” to be sold. The marshal returned that he had advertised by posting notice on the courthouse door and “one on or near” the property. The first complaint seems to be that the return “on or near” is not a compliance with the decree, but that in order to comply the marshal should have returned whether the posting was one or the other “on or near”. If the posting was either on or near the property it was a compliance, and that it was either one or the other the return sufficiently shows. In the second place appellant complains that the evidence shows there was no posting on or near the premises. In answer to this it is sufficient to say that there is no evidence in the record impeaching the return. There are .certain affidavits stating that no notice was posted as returned, but there is nothing to show that these affidavits were read on the hearing of the motion to set aside the report of sale, there is no order filing them, nor is there anything to show whether there was other evidence heard on that motion. Only .a portion of the record is here and therefore it is impossible for us to say what evidence was heard, but in such case we must presume that the evidence before the court was not sufficient to overturn the report of the fnarshal, if'it might be attacked in this way at -all, a point not necessary to decide.
The second complaint that the sale ought to be set aside because of inadequacy of price is not well taken. Mere inadequacy of price will not authorize such a sale to bo set aside unless it is so great as to import fraud. Stump v. Martin, 9 Bush (Ky.) 285. In this case the property sold for $6,020 when the affidavits filed show it to have been worth from $12,000 to $13,000, but there was nothing else to show that a resale would yield more as there was no advanced bill tendered.
The third objection that the purchaser did not execute bond can avail appellant nothing. The purchaser, appellee, bought the property for much less than his debt which was, as to appellant, a prior lien on the land. She has no right to complain as she is in no way interested in the proceeds of the sale.
Judgment affirmed.