5 S.D. 636 | S.D. | 1894
Prom the return made to the writ of certiorari in the above-entitled action it appears: That on October 2, 1891, a judgment of foreclosure was made and entered in the circuit court of Beadle county, in an action wherein M. Kunz, the plaintiff Hferein was plaintiff, and Ann Eliza Miller, Medad Miller, Lewis W. Hazen, and John A. Fowler were defendants. That on November 10, 1891, a sale of the mortgaged premises, consisting of several separate tracts of land, was made, under which one Lucetta R. Miller bid in the N. E. í of section 19, township No. 110, range 65, in Beadle county, for the sum of $800; and that the same was struck off to her, and that the sale was duly reported to the court. That on December 10, 1891, Mr. Null, attorney for the plaintiff in that action, made an affidavit from which- it appears that the said quarter section was reasonably worth the sum of $1,600, and that he was authorized by his client, in case a resale of said quarter section was ordered, to bid at least $1,500 for the same, and prayed that a resale might be ordered. Upon said affidavit the court, on the same day, made an order setting aside the sale as to the said quarter section, but confirmed the sale as to the other mortgaged property. So much of this order as is material to the question in controversy, after the usual recitals, is as follows: “It is hereby "ordered that the sale under said special execution had upon the 10th day of November, 1891, so far as the same relates to the said tract of land struck off and sold to Lucetta R.-Miller, be and the same is hereby, in all things set aside: and the said sheriff is hereby
The question, therefore, presented by the return is: Did the court have jurisdiction to make the order of January 27, 1893, confirming the sale to Lucetta R. Miller of November 10, 1891, which had been vacated and set aside by the order of December 10, 1891, and under which a resale had been made and confirmed by the court ? It is contended by the counsel for the plaintiff that the court exceeded its jurisdiction in making the last order, and that the same is null and void. Counsel for Lucetta R. Miller contends that the court still had jurisdiction of the subject-matter and the parties, and that it therefore had jurisdiction to make the order, and that it is therefore a valid and binding order. The sections of the statute applicable are as follows: .Section 5507: “A writ of certiorari may be granted by the supreme and district courts, when inferior courts, officers, boards or tribunals have exceeded their jurisdiction; and there is no Writ of error or appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy.” Section 5513: “The review upon this writ cannot be extended further than to determine whether the inferior court, tribunal, board or officer, has regularly pursued the authority of such court, tribunal, board or officer.’’ If the circuit court, therefore, exceeded its jurisdiction or failed to pursue the authority of such court in making the order of January 27, 1893, confirming the sale made to Lucetta R. Miller on November 10, 1891, its proceedings must be set aside. The theory of the
Mr, Wiltsie, in his work on Mortgage Foreclosures says: “The plaintiff having duly procured the judgment of foreclosure and sale, and entered the same, is entitled to proceed to have the mortgaged premises sold for the payment of his debt. A sale under such decree is, in contemplation of law, the act of the court, although it may be made through the instrumentality of some officer designated by statute or appointed by the court. When the sale is confirmed, it becomes the act of the court, or, in other words, is a judicial sale; but until such confirmation there is no judicial sale, and no title passes to the purchaser. * * * The sale may be made by a master in chancery, a referee, trustee, commissioner, or sheriff; and in
It is contended that as there was no showing made by the plaintiff to set aside the sale of November 10, 1891, the same was not'fairly and regularly made; that the court could not legally vacate and set aside the sale; and that his order of December 10th, setting aside the sale made to Lucetta R. Miller, was a nulity.- This, as we have stated, was evidently the theory upon which the court proceeded in- making the order of January 27, 1893. But in this we think the court and counsel were clearly in;¡error. The confirmation or reporting of the sale is, in our opinion, in the discretion of the court; and although the ^ sale may be regularly ’ and fairly made, yet if the price for which the sale was made, in the opinion of the court, is clearly inadequate, it is not only in the discretion of the court to set aside and vacate the sale, but it is his duty to do so. In Adams v. Haskell, supra, the court'says: “We think the order from which this appeal is taken must be affirmed. There is nothing in the case tending to show that the sale was not fairly^ and legally made, or which created a
In the case at bar the inadequacy of price was clearly show by the affidavit of Mr. Null, in that the sale was made for $800, when his client was ready to pay $1,500; and, as shown by the report of the second sale, he actually bid $1,600, for which the quarter section was struck off to him. The court in our judgment, therefore, not only legally but very properly exercised its discretion in vacating and setting aside the sale, if the matter was properly before it for the purposes of the order. In our opinion it was. The court had jurisdiction of the subject-matter and of the parties to the original action. It was exercising jurisdiction in a proceeding properly before the court. The matter of confirming the sale was a matter upon yrhich the court was required to act by either confirming or setting aside the sale. The plaintiff was represented by her attorney, Mr. Null; the defendants had failed to appear, and were not, therefore, entitled to notice. Undoubtedly, as a question of practice, Lucetta R. Miller, the bidder at the sale, should have had notice of the motion to vacate and set aside the sale made to her, but the order made was valid, though made without notice to her. Nugent v. Nugent, supra. The purchaser, Lucetta R. Miller, had no absolute legal right to notice. She stood in the position of her grantors, the defendants in the action. The relation of a stranger who purchases at a sale upon a mortgage foreclosure is thus stated by the court of appeals of New York, in Hale v. Clausen, 60 N. Y. 339. “The supreme court has power to set aside and vacate a sale of lands made under a judgment upon a foreclosure of a mortgage, or pursuant to an order -of the court by an officer thereof, and to order a resale, although there be no fraud, and the sale is in all respects regular. * * * It is claimed, however, that other parties, strangers to the judgment, and not to
Lucetta E. Miller, by her bid, acquired no right or title to the property. She made her bid subject to its acceptance or rejection by the court, and the court, in rejecting it and ordering a resale, simply exercised the right reserved to it, and could legally make its order upon an ex parte proceeding. While such a practice is not commendable, it does not render the court’s order void. The order of December 10, 1891, vacating and setting aside the sale of November 10, 1891, and directing a resale, being a valid order, and the order confirming such sale being valid, it follows that the proceedings of January 27, 1893, confirming the sale of November 10th, were clearly without the jurisdiction of the court. There was no sale to con