114 Ga. 189 | Ga. | 1901
From the plaintiff’s petition it appears that Ayer borrowed from the Georgia Loan and Trust Company a certain sum of money and gave it a security deed. Ayer being unable to pay the money when the debt became due, the company brought its action on his note and obtained judgment for $1,700. It filed in the clerk’s office a deed conveying the land back to Ayer, as provided by the code, and had the sheriff to levy upon the same as Ayer’s property. This land was worth about $1,500 and had on it a growing crop worth nearly as much. On the day the property was to be sold by the sheriff, Ayer made to the attorneys for the company a proposition which they, after telephoning to their client, whose residence was 200 miles away, accepted. It seems to have been necessary for them to go to the telephone exchange to converse with the proper parties. Before leaving for the exchange they notified the sheriff of their purpose in going, .and requested and instructed him not to sell the property until their return. Their client agreeing to the proposition made by Ayer, they returned to the court-house in front of which the sale was to be had, and commenced to reduce the agreement to writing. The sheriff entered the room and inquired if they were ready for the sale to proceed. They informed him that they were not quite ready, and asked him to hold the sale off until he had finished selling all the other property advertised for sale on that day. This he agreed to do. A few minutes later and unknown to plaintiff’s counsel, Ayer went out and said to the sheriff: “ When you get ready to sell, get
Our Civil Code, § 3549, declares that “ Inadequacy of price is no ground for rescission of a contract of sale, unless it is so gross as combined with other circumstances to amount to a fraud.” Any one who will read the facts above recited will declare without hesitation that the price paid for this property was grossly inadequate. A tract of land worth, according to the allegations of the petition, $1,500, with a crop upon it worth as much, was bid in by the plaintiff in error for $40, about 1/75 of its real value. The made
It may be argued that the section of the code which is cited above applies only to contracts for private sales; but in Parker v. Glenn, 72 Ga. 637, this court held that there was no reason why the code section under discussion should not be applied to execution sales as well. Taking all the facts together, it is manifest to us that the judge did not err in overruling the demurrers based on this ground. See, generally, as to inadequacy of price as affecting judicial sales, 12 Enc. Pl. & Pr. 93 et seq.
But it was argued by counsel for the plaintiff in error that the court should not set aside the sale in the present case, because the purchaser had no knowledge or notice of any irregularity, and was not in any way connected with the mistake, misapprehension, or inadvertence of the sheriff. Our Civil Code, § 5427, declares that “ Courts have full power over their officers making execution sales, and whenever satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the sale
Judgment affirmed.