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Where the sale is made under a decree in chancery, the power of the court to enforce the contract of purchase is broader than in case of an ordinary execution sale. In addition to an action at law to recover the amount bid, or the deficiency upon a resale,1 the court of chancery may, upon motion, or proper application, (1) set aside the sale, release the purchaser, and decree a resale; or (2) ratify the sale and decree a specific performance of the contract, enforcing its order by attachment and commitment of the person of the purchaser for contempt; or (3) order a resale, holding the purchaser liable for any deficiency, and for the costs of the resale." 2

Judgment for the deficiency may be obtained upon motion, under the Missouri statute. Phillips v. Goldman, 75 Mo. 686; Gray v. Čase, 51 Mo. 463. See also in Indiana, Williams 7. Lines, 7 Blackf. (Ind.) 46.

1. These remedies exist, notwith standing the more summary remedies to which resort may also be had in courts of equity. Townshend v. Simon, 38 N. J. L. 239. So an action at law may be maintained upon notes or bonds given by the purchaser. Farmers' etc. Bank v. Martin, 7 Md. 342; s. c., 61 Am. Dec. 350, 352; Riddle . Hill, 51 Ala. 224.

But a defaulting purchaser at sheriff's sale is not liable to respond in damages for loss on resale of the property if it appears that under the first sale he would have acquired a more valuable title than that which passed to the pur chaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the resale. Hare v. Bedell, 98 Pa. St. 485. And in Tennessee, where a sheriff, under an execution, sells land and it is bid in by a purchaser who fails to pay the money, and he again sells at a less sum to another purchaser, the first purchaser cannot be held liable by the judgment creditor for the difference in the first and last bid. Harvey v. Adams, 9 Lea (Tenn.) 289.

2. Abridged from 2 Jones on Mortgages, 1642, by Mr. Freeman in a note to Mount v. Brown, 33 Miss. 566; s. c., 69 Am. Dec. 369. See also Clarkson v. Read, 15 Gratt. (Va.) 288; Goodwin v. Simonson, 74 N. Y. 133; Miltenberger v. Hill, 17 La. An. 52; Shaefer v. O'Brien, 49 Md. 253; Murdock's Case, 2 Bland (Md.) 461; s. c., 20 Am. Dec. 381; Stimson v. Mead, 2 R. I. 541.

Mode of Procedure Generally.-After the bid has been accepted and the sale

ratified, a rule may be taken against the purchaser to show cause why he has not paid his bid and completed his contract. Anderson v. Foulke, 2 Har. & G. (Md.) 346; Harding v. Yarborough, 6 Jones Eq. (N. Car.) 215; Hill v. Hill, 58 Ill. 239; Vance v. Foster, 9 Bush (Ky.) 389. Upon his failure to show cause, the court will order him to pay the purchase money and may enforce this order by attachment. Brasher 7. Cortlandt, 2 Johns. Ch. (N. Y.) 505; Lansdown v. Elderton, 14 Ves. 512, and authorities last above cited. In some jurisdictions this order may be obtained upon motion merely. Ogilvie . Richardson, 14 Wis. 157; Cazet z. Hubbell, 36 N. Y. 677. And execution has been issued against the property of the purchaser in some cases. Blackmore v. Barker, 2 Swan. (Tenn.) 340; Atkinson v. Richardson, 18 Wis.

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The practice is similar where an order for resale is sought. Matter of Yates, 6 Jones Eq. (N. Car.) 212, 306; Williams . Blakey, 76 Va. 2541 Schaefer . O'Brien, 49 Md. 253. The order should direct the resale of the property at the risk and expense of the defaulting bidder. Hill v. Hill, 58 Ill. 239.

In North Carolina, the title is con sidered in custodia legis until payment of the purchase money. Fleming 7. Roberts, S4 N. Car. 532. See also as to retention of title in Virginia and West Virginia, Glenn v. Blackford, 23 W. Va. 182; Long v. Weller, 29 Gratt. (Va.) 347

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In Tennessee, judgment may taken and a resale ordered upon motion and without notice to the purchaser. Munson 7. Payne, 9 Heisk. (Tenn.) 672; Mosby v. Hunt, 9 Heisk. (Tenn.) 675

A purchaser who remains in posses sion after a sale is set aside and the deed vacated is a mere trespasser.

V. SETTING ASIDE AND RESALE.-Where justice requires it, and the rights of third persons have not so intervened as to prevent it, the court issuing the process or order of sale may vacate or set aside the sale for good cause shown. Indeed, it is said to be "the duty of all courts, when satisfied that sales made under their process are affected with fraud, irregularity or error, wilful disregard of the statutory regulations by the officer, whereby the rights of either of the parties interested are seriously affected, to set aside such sale upon a proper showing to the court under whose process the sale was made, and order a resale of the property." "I Among the causes for which sales have most often been set aside are fraud, accident and mistake.2 Mere inadequacy of

Green v. Jordan, S3 Ala. 220; s. c. 3 Am. St. Rep. 711.

See further as, to liabilities of purchaser and mode and mode of enforcing bids, Woods v. Ellis (Va.), 7 S. E. Rep. 852; Townshend v. Simon, 38 N. J. L. 239, Shinn v. Roberts, 20 N. J. L. 435; S. C., 43 Am. Dec. 636; Galpin v. Lamb, 29 Ohio St. 529; Cobb v. Wood, 8 Cush. (Mass.) 228; Deaderick v. Watkins, 8 8 Humph. (Tenn.) 520; Still v. Boon, 5 Sneed (Tenn.) 380; Williams. Blakey, 76 Va. 254; Mosby v. Withers, So Va. 82; Fleming v. Roberts, 84 N. Car. 532; Clarkson v. Read, 15 Gratt. (Va.) 288; Cooper v. Borrall, 10 Pa. St. 491; Sharman v. Walker, 68 Ga. 148.

1. Herman on Executions 406, § 249. This statement of the rule serves to indicate generally the power, if not the duty, of the courts, and is supported in its general scope by the authorities cited by Mr. Herman. See also Freeman on Executions (2nd ed.), 308; Jarboe v. Colvin, 4 Bush (Ky.) 70; King v. Platt, 37 N. Y. 155; Rhonemus v. Corwin, 9 Ohio St. 366; Hopton v. Swan, 50 Miss. 545; Hilleary 7. Thompson, 11 W. Va. 113; Fix . Loranger, 50 Mich. 199; Kauffman v. Walker, 9 Md. 240; Hudson v. Morriss, 55 Tex. 595; Fleming . Maddox, 30 Iowa 239; Ewald v. Coleman, 19 Ind. 66; and authorities hereinafter cited.

2. See Seaman v. Riggins, 1 Green's Ch. (N. J.) 214; s. c., 34 Am. Dec. 200, with note; Aldrick v. Wilcox, 10 R. I. 405, 414; Wetzler v. Schaumann, 9 C. E. Green (N. J.) 64; Campbell v. Gardner, 3 Stockt. Ch. (N. J.) 423; s. c., 69 Am. Dec. 598; Littell v. Zuntz, 2 Ala. 256; s. c. 36 Am. Dec. 415; Hoppock v. Conklin, 4 Sand. Ch. (N. Y.) 582; Cumming's Appeal, 23 Pa. St. 509; Allen v. Clark, 36 Wis. 101.

When Sale Will Be Set Aside.—In a recent New Jersey case, where the complaint in the original cause promised to notify the petitioner, who was interested in the property, of the time and place of sale, and forgot so to do, in consequence whereof the petitioner did not attend, and the property was sacrificed, such sale was set aside. Pell v. Vreeland, 35 N. J. Eq. 22. So, in a late Texas case, it Texas case, it was held that a judgment creditor who, by reason of the unusual hour at which an execution sale is made and the inclemency of the weather, is prevented, without laches on his part, from being present to protect. his interest as a bidder against an insolvent judgment debtor, whereby, and because of few bidders being present, the property sold for less than its value and less than the judgment, is entitled in equity to have the sale set aside. Johnson v. Crawl, 55 Tex. 571. And see for a like ruling under a very similar state of facts, Weir v. Travellers' Ins. Co., 32 Kan. 325.

Where, on enquiry at the office of the sheriff by the attorney of a defendant in an execution, he is informed by a deputy in charge of the office that the sale of the property levied on, consisting of three hundred and thirty-three shares of stock in a corporation, will take place at twelve o'clock on the day of sale, and subsequently the sale is made in mass at ten o'clock, in the absence of the defendant or his attorney, and without their knowledge, and at a great sacrifice of the value of the property, such sale will be set aside, on timely application, on motion of defendant. Am. Wine Co. v. Scholer, 85 Mo. 496.

When a purchaser of land at sheriff's sale induces others not to bid and thus procures the land for less than it is

worth, the sale will be set aside, and this will be done though the action is not instituted until after the year of redemption has expired. Lynch 7. Reese, 97 Ind. 360.

Where two separate lots, of the value of $8,000, are sold on execution for $65, en masse, without first offering them separately, a court of equity will interpose, if invoked in a reasonable time, and set the sale aside. Berry v. Lovi, 107 Ill. 612.

În Hughes 7. Duncan, 60 Tex. 72, where, without the knowledge of the judgment creditor, in whose favor a judgment had been rendered, ordering the sale of specific land, to which a lien. attached, execution issued under which the land sold for one-fortieth of its real value, the sale was set aside on proceedings instituted by injunction after the sale and before the payment of the sum bid, it being shown that the sale was made in violation of an agreement between the debtor and creditor for indulgence and both uniting in proceed ings to set it aside.

At an execution sale the defendant's property was bid off by the plaintiff at an inconsiderable sum, in pursuance of an alleged fraudulent arrangement to suppress competition among bidders. Held, in an action to impeach the title acquired by plaintiff, that the sale should be set aside and the parties placed in statu quo, without prejudice to the plaintiff's remedies from lapse of time since the sale. Currie v. Clark, 90 N. Car. 355.

In a foreign attachment suit, under the provisions of chapter 151 of the code of Virginia, where the defendant has not appeared or been served with a copy of the attachment as provided in section 24, the giving of the bond required by said section is a condition precedent to the sale of the attached property under section 23 of said chapter. And where a sale is made without such bond having been given and confirmed, the decree confirming such sale will be reversed and the sale set aside, and the purchaser at such sale is not entitled to the protection of the 27th section of said chapter. Hall Lowther, 22 W. Va. 570.

When Sale Will Not Be Set Aside.-An execution sale of real property will not be set aside merely because sold for much less than its real value, there remaining a right of redemption after the sale. Nor will it be set aside because the tract sold, being composed of parts

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of two lots and occupied by two dwelling houses, was sold as one parcel, it being determined that in fact the property consisted of but one tract or parcel of land. Coolbaugh v. Roemer, 32 Minn. 445.

Where a judgment is rendered and an execution issued against Rosina Coons, it is not sufficient reason for setting aside a sale of real estate made on such execution that the right name of the defendant is shown to be Rosina Kuhn. Kuhn v. Kilmer, 16 Neb. 699.

Defects in the advertisement of the sale by the sheriff, and in the notice given to the defendant in execution, are mere irregularities, and do not furnish good grounds for setting aside the sale without proof of consequent injury to the party complaining. Holly . Bass, 68 Ala. 206.

Mere irregularity in making a judicial sale, when taken in connection with gross inadequacy of consideration, will not alone, as matter of law, be held a sufficient ground for vacating such sale, in the absence of facts showing that the irregularity conduced to the inadequacy of the sum bid. Allen v. Pierson, 60 Tex. 604.

In Alabama, the following distinction has been drawn: "When a sale of lands under execution at law is impeached, because of mere error in the process, or on account of some error attending its execution, the court from which the process issued has exclusive jurisdiction to set aside the sale; but, if fraud or illegality attends the sale, or it has been followed by the execution of a conveyance casting a cloud upon the title, a court of equity has jurisdiction concurrent with the court of law to set it aside. If the judgment was in fact satisfied at the time of the sale under execution, the court from which the process issued has undoubted jurisdiction to set aside the sale; but, if the process is regular on its face, and the sale is followed by a regular conveyance to the plaintiff in execution execution as the the purchaser, the fact of payment resting in parol, a court of equity will intervene, at the instance of the defendant in possession, set aside the sale, and cancel the conveyance as a cloud on the title." Cowen v. Sapp, 74 Ala. 44.

See also upon this subject generally Herman on Executions 408, 250; 34 Am. Dec. 204, note; RIGHTS OF PURCHASER, supra, this title.

In Pennsylvania, after a sheriff's sale has been confirmed, the purchase money

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But gross inadequacy of price

price, however, is not of itself sufficient cause, in an ordinary case, for setting aside the sale.1 paid, the deed acknowledged, recorded and delivered to the purchaser, and possession of the premises taken by him, the court has no power, upon a rule to show cause, to set aside the sale and compel the purchaser to deliver up the deed to be cancelled. Evans Maury, 112 Pa. St. 300. See also Cooper v. Wilson, 96 Pa. St. 409. So in Illinois, after the deed for real estate sold under execution has been made, the court has no power, on motion, to set aside the deed or set aside the sale. It must be impeached, if at all, in equity, unless there was no judgment or execution, or the court had no jurisdiction to render the judgment. Section 65 of the Practice act has no application to motions to set aside judicial sales, but refers to writs of execution, replevin bonds and the like. Jenkins v. Merriweather, 109 Ill. 647.

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Another interesting case was recently decided by the supreme court of Kansas. A judgment was rendered against the defendant on a promissory note and a real estate mortgage, in his absence and without his knowledge, in pursuance of a service of summons made by the sheriff, who left a duly certified copy thereof with his wife at his usual place of residence; the property was ordered to be sold; at the time when the judgment was rendered the land was worth but little more than the judgment; afterward the defendant returned home and had notice of the judgment; an order of sale was then issued; the defendant did not pay or tender the amount of the judgment or any part thereof, and did not attend the sale or attempt to make the property sell for what it was worth, and the property was sold to a person not an entire stranger to all the proceedings in the case, but not a party to the suit and having no interest in the judgment, for a sum much less than the amount of

the judgment and much less than the value of the property; afterward the plaintiff moved the court to have the sale confirmed; and the defendant then tendered the amount of the judgment and moved the court that the sale be set aside; and the plaintiff and purchaser then jointly moved the court to permit the purchaser to increase his bid up to the amount of the judgment, and to permit that amount to be credited on the judgment; at that time the land being worth nearly twice the amount of the judgment. Held, that the motions of the plaintiff and purchaser should be sustained, and the motion of the defendant should be overruled; that neither the manner of service of summons, nor the want of the defendant's actual knowledge of the rendition of the judgment, nor the fact that the purchaser was not an entire stranger to all the proceedings in the case, nor the fact that the property was sold for much. less than its value, nor the fact that the property at the time of the confirmation of the sale was worth much more than the amount of the judgment, nor all together, will authorize the sale to be set aside. McGeorge v. Sease, 32 Kan. 387.

In Indiana, a sale of land under an alias writ will not be set aside as void merely because the writ was improvidently issued by the clerk without the plaintiff's order. And in general one claiming in the character of a judgment creditor cannot avail himself of mere irregularities to set aside a consummated sale. Johnson v. Murray, 112 Ind. 154; s. c., 2 Am. St. Rep. 174.

The doctrine of estoppel will often prevent a party from having a sale set aside where he has acquiesced therein, delayed too long or received the benefits thereof. See Critchlow v. Critchlow (Pa.), 11 Atl. Rep. 235; Presstman v. Mason (Md.), 11 Atl. Rep. 764; Walet 7. Haskins, 68 Tex. 418; s. c., 2 Am. St. Rep. 501. See also EQUITY; ESTOPPEL.

1. Graffam v. Burgess, 117 U. S. 180; Brittin v. Handy, 20 Ark. 381; s. c.. 73 Am. Dec. 497; Parker v. Glenn, 72 Ga. 637; Weaver v. Lyon (Pa.), 5 Atl. Rep. 782; Coolbaugh v. Roemer, 32 Minn. 445; Beckwith v. Kings Mt. etc. Co., 87 N. Car. 155; Hunt . Fisher, 29 Fed. Rep. So and note; Littell v. Zuntz, 2 Ala. 256; s. c., 36 Am. Dec. 415.

Thus a sheriff's sale on execution of

has in many cases been treated as a badge of fraud,1 and, when coupled with other suspicious circumstances, may be sufficient cause for setting aside the sale.2

Any party in interest, usually the plaintiff, the defendant or the purchaser, may have the sale vacated for good cause when he has been prejudiced thereby.3 But a stranger in interest who is not injuriously affected by the sale cannot have it vacated.4 Nor

real estate of the alleged value of $6,400, subject to a mortgage of $4,000, for the sum of $5, will not be set aside merely on the ground of inadequacy of price. Kerr . Haverstick, 94 Ind. 178. So held where $165 was bid for property worth $600. Sowles v. Harvey, 20 Ind. 217; s. c., 83 Am. Dec. 315. And see especially O'Callaghan v. O'Callaghan, 91 Ill. 228. But compare In re Palmer, 13 Fed. Rep. 870; Blackburn v. Selma R. Co., 3 Fed. Rep. 689.

Affidavits which state simply that the lands "sold for greatly less than their value," not stating the value and price, or other facts from which these can be ascertained, being merely the statement of opinions, are not sufficient to set aside the sale. Holly v. Bass, 68 Ala. 206.

1. See Fisher v. Shelver, 53 Wis. 498; Ames v Gilmore, 59 Mo. 537; Fuller v. Brewster, 53 Md. 358, 361; Apperson v. Burgett, 33 Ark. 338; Stevens v. Dillman, 86 Ill. 233; Loring v. Dunning, 16 Fla. 119.

2. Kloepping v. Stellmacher, 21 N. J. Eq. 328; Fletcher 7. McGill, 110 Ind. 395; Wright v. Dick (Ind.), 19 N. E. Rep. 306; Čubbage v. Franklin, 62 Mo. 364; Morris v. Roley, 73 Ill. 462; Pearson. Hudson, 52 Tex. 352; Fitzgerald v. Kelso (Iowa), 29 N. W. Rep. 943; Bean v. Hoffendorfer (Ky.), 2 S. W. Rep. 556; Weir v. Travelers' Ins. Co., 32 Kan. 325; Lee v. Davis, 16 Ala. 516; Beckwith v. Kings etc. Co., 87 N. Car. 155.

"Inadequacy of price is not sufficient per se to set aside a sale, unless it is so gross as, when combined with other circumstances, to amount to fraud; but if it be great, it is of itself a strong circumstance to evidence fraud; and this is true where it is attended by any other fact showing the transaction to be unfair or unjust or against good conscience." Parker . Glenn, 72 Ga. 637.

Where an order of sale is issued without the authority or knowledge of the judgment creditor or any of his attorneys, and the creditor has no

knowledge of the day of sale, and the attorneys of the creditor testify they had no notice thereof, and the attorneys are not present at the sale, and the real estate is bid in by one of the judgment debtors under the direction of his wife, for and in her name, at a grossly inadequate price, the district court is justified in setting the sale aside. Weir v. Travelers' Ins. Co., 32 Kan. 325.

Great inadequacy of price at a judicial sale of real estate requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise a presumption of fraud. And if the inadequacy of price at a sale on an execution be so gross as to shock the conscience, or if in addition to gross inadequacy the purchaser has been guilty of unfairness or has taken any undue advantage, or if the owner of the property or the party interested in it has been for any other reason misled or surprised, then the sale will be regarded as fraudulent and void, and the party injured will be permitted to redeem the property sold. Graffam v. Burgess, 117 U. S. 180.

Where real estate is sold at sheriff's sale, a few minutes prior to the time at which the sale was advertised to take place, and at a grossly inadequate price, the sale may be set aside on motion of the defendant. Pickett v. Pickett, 31 Kan. 727.

See also, for a collection of many other authorities upon this subject, DEBTS OF DE CEDENTS, vol. 5, p. 301; Subtit. Restraining and Setting Aside.

3. Freeman on Executions, § 305; Galbreath v. Drought, 29 Kan. 711; Cravens v. Wilson, 48 Tex. 324; U. S. v. Vestel, 12 Fed. Rep. 59.

Thus holders of subordinate liens or those to whom property is transferred subject to the lien of the execution may, in proper cases, have the sale vacated. Harrison v. Andrews, 18 Kan. 535; Cravens v. Wilson, 48 Tex. 324. Compare Frink v. Morrison, 13 Abb. Pr. (N. Y.) 8o.

4. Gilmer, Matter of, 21 La. An. 589, and Louisiana cases there cited; Laird

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