
    Anniston Pipe Works v. Williams, and Anniston Pipe Works v. Houser, et al.
    
    
      Motion to Set Aside Sale under Execution.
    
    1. Execution sale; place of sale, when county has two court-houses When there are two court-houses in a county, one at the county seat where the circuit, chancery, probate and other courts are held, and the other at a different city, which is included within the territory embraced in an act of the legislature establishing a city court, which has co-e qual and co-ordinate powers and authority with the circuit and chancery courts within certain designated precincts of the particular county, said court being a part of the machinery of justice in said county, the provisions of the statute (Code, § 2907), which requires that sales of land under execution shall be made at the courthouse of the county, applies to both of said court-houses within such county, and sales of land under execution may be made at either court-house.
    2. Same; sale of several distinct parcels of land, must be made separately. — When several distinct parcels of landar’e to be sold under execution, the officer making the sale should sell them, separately, unless it be shown that by reason of special circumstances a “lumping sale”, or sale era masse, was neceisary or more advantageous to all parties ; and if in disregard of his duty, the officer sells all the parcels of land together, such sale will be set aside on proper application, seasonably, made.
    3. Motion to set aside sale under execution; when seasonably made.— There is no inflexible rule as to the time within which a motion to set aside and vacate a sale of land under execution must be made, the seasonableness of such a motion being determinable by the facts and circumstances of each particular case; and where, after a sale under execution, the property remained unchanged and it is shown that nothing affecting the property itself or the relation of the purchasers to it has resulted from the delay, a motion to set aside such sale made within two years from its date is seasonably made.
    4. Same; when improperly grantedby court of law. — While, as a general rule, courts of law have complete control over their own processes and are competent to prevent injustice in the execution thereof, circumstances sometimes arise in which they are incompetent and powerless to protect the rights of others which have intervened; and where on a motion in a court of law to set aside a sale under an exeeufcion issued therefrom, it is shown that the sheriff has executed his deed and the purchaser has gone into possession and paid off taxes and other liens, which should rightfully be refunded to him, such motion can not be granted, since the court of law is not competent to give the relief justice demands in setting aside the sale, by annulling the deed and refunding to the purchaser his rightful expenditures, and the movant can only obtain relief in a court of equity. (MoOljsllax, J., dissenting.)
    Appeal from the City Court of Auniston.
    Tried before the Hon. T. R. Matthews, Special Judge.
    The questions in both of these causes being the same, they are submitted together on the present appeal. The' proceedings were instituted by motions in the case of Anniston Pipe Works y. W. H. Williams, on the common law side of the docket of the Anniston city court. In the first case the motion is made by W. H. Williams, the defendant in execution ; and in the other case by T. L. and C. J. Houser, judgment creditors of said W. H. Williams. The Anniston Pipe Works had recovered a judgment against W. H. Williams, and an execution issued on said judgment had been levied on certain real estate as the property of said Williams ; and the property sold thereunder, and purchased by the receivers of the Anniston Pipe Works. The motions and pleadings in each case are substantially the same. The motions were made to have set aside the sale of the lands under the execution in said cause on August 15th, 1892 ; the lands, as levied upon and sold, being described in said motions. The motion of Williams was made on June 11th, 1894; and the Houser motion was made on May 30th, 1894. The grounds of each motion were as follows : “1. That the said lands and lots consist of several distinct and separate tracts or parcels of lands, and were sold by the sheriff and bid off by said receivers en masse, and for a sum in gross.
    ‘ ‘2. That the said lands so sold by said sheriff en masse were reasonably worth, at the time of said sale, the sum of one hundred thousand dollars, or more, and that by reason of being sold together, en masse, they brought only the sum of $7,026.25, and were bid off and purchased by said receiver at said last named sum.
    “3. Because said sale was made at a place not authorized by law.
    
      "4. That the said lots and lands were insufficiently-described in the advertisement for said sale and levy.”
    The Anniston Pipe Works and W. W. Stringfellow and W. G. Ledbetter, the receivers of said Pipe Works ¿md the purchasers of said lands sold under the execution, filed an answer to each of said motions, and alleged therein that said sale of the lands levied upon under the execution was fairly conducted ; that said property sold for an amount not greatly less than its real value, and as much as it would have brought if offered for sale or sold in separate parcels or lots; that after the said sale the said Stringfellow and Ledbetter, as'receivers, received a deed of conveyance to said property from the sheriff who made the sale, and entered into the possession and control of said property, and have since continued in possession thereof, and have returned the same for taxes, and have paid taxes and other liens prior to all other liens on said property; and. had advertised said property for sale and distribution among the creditors of the Anniston Pipe Works before the motions in this case were entered and filed ; and that said motions to set aside said sale came too late, and should not be granted by the court. The fifth paragraph of said answers was as follows : "And for further answer to said motion, defendants say that said property was not sold at said sale for an amount greatly less than its real value, and they are willing and hereby offer to have said sale vacated upon being reimbursed the amount of their said bid, with the taxes and other liens paid by them on said property ; and hereby offer to convey said property and all their, interest acquired at said sale therein to the movants in this cause, or to any other person, upon being paid the amount of their said bid, and the amount of said taxes and liens paid by them thereon.” The movants demurred to the answers on the grounds : (1) , that the matters and thing set up therein are insufficient, and are no answer to said motion ; and (2), because the facts averred in the answers are statements of matters immaterial to the issue involved. The court overruled the demurrer, excejDt as to the fifth paragraph of the answers, and sustained it as to said fifth paragraph ; and to this ruling of the court the respondents duly excepted.
    The evidence introduced on the hearing of these motions was in conflict. The witnesses in behalf of the movants testifying that the property sold under the execution was purchased for a price greatly less than its real value; and that if the lots or parcels of the lands had been sold separately, the property would have brought a much better price. The testimony for the respondents to said motions tended to show that the property sold under the execution was encumbered with other liens and claims ; and that as a result of such incumbrances, the.price paid for it was not less than its real value — the purchasers buying practically only the right of redemption; and that by reason of such incumbrances and other causes, the property sold en masse brought as good price as if it had been sold in separate lots or parcels. It was also shown by the evidence that the sale was advertised to take place, and did take place, in front of the city court room in the city of Anniston.
    Upon the hearing of all the evidence on the respective motions, the court granted each of them, and ordered that the sale under the execution be set aside, vacated, and held for naught. The Anniston Pipe Works and W. W. Stringfellow and W. G. Ledbetter, as receivers of said Pipe Works, prosecute the appeal in each case, and assign as error the judgment of the court sustaining the demurrer to the fifth paragraph of the respondents’ answers, and the final judgment of the court sustaining the motions, and setting aside the sale under the execution.
    Knox, Bowie & Pelham, for appellants.
    — 1. The act creating the city court, prescribing, as it does, that the-court shall be held at a different place from the county seat, presents the case of a county with two court-houses ; a situation it would seem not within the contemplation of the legislature in providing that judicial sales shall be .made at the county court-house. — Code, § 2907. Where there are two court-houses in the county, as in this case, both owned and controlled by the county, the one just as much the court-house of the county as the other, the sheriff would be allowed a discretion in the place of sale, and the sale would not be illegal if made, as in this case, at the court-house in Anniston. — Nesbittv. Dallam, 28 Amer. Dec. 243; Freeman on Executions, 249,
    
      2. Ordinarily it may be the duty of the sheriff, in a case like this, to offer the lands in parcels, where this can be done .conveniently and to the advantage of the parties. But the court will observe that this is not an arbitrary or unbending rule, even so far as the question of the sheriff’s duty is concerned. Numerous cases might be instanced where it would be the duty of the sheriff, if he thought and believed it to the advantage of the parties in interest, to sell in bulk and not in parcels. As is stated in a number of cases to which the court has been referred, something must, of necessity, be left; to the sound discretion of the sheriff in meeting and discharging the responsible duties of his office. — Parkhurst v. Cory, 11 N. J. Eq. 233 ; Holmes v. Steele, 28 N. ,1. Eq. 173 ; Vanduyne v. Vanduyne, 16 N. J. Eq. 93 ; Merwin v. Sonith, 2N. J. Eq. 182.
    3. It is well settled in this State, whatever may be the rule in other States, that a judicial sale will not be vacated or set aside unless there has been an abuse of the process resulting in direct, positive, manifest injury to the party complaining. — Holly v. Bass, 68 Ala. 206 ; McLaughlm v. Bradford, 82 Ala. 431; Ray v. Womble, 56 Ala. 32 ; Griggv. Banks, 59 Ala. 311 ; Cramer v. Watson, 73 Ala. 127; Code of 1886, § 1881. Public policy; the peace and repose of titles ; the stability of judicial sales, all require that the court should refuse to interfere, "unless fraud or illegality, or irregularities seriously affecting their character and fairness intervene.” — Coiuaoi v. Sapp, 74 Ala. 44.
    4. All the authorities hold that inadequancy of price, though gross, is not in itself sufficient cause for setting aside the sale. If the sale was fairly conducted, it will be upheld, notwithstanding gross inadequacy of price.— Holly v. Bass, 68 Ala. 206 ; Littell v. Zuntz, 2 Ala. 256 ; Blaokbwrnv. Selma R. Co., 3 Fed. Rep. 689; Pewabic Mining Co. v. Mason, 145 U. S. 349 ; 12 Amer. & Eng. Encyc. of Law, 235 ; Pate v. Hinson, 104 Ala. 599; Cummins v. Little, 16 N. J. Eq. 48.
    5. The court, in granting or witholding the motion, proceeds entirely upon principles of equity. If the movants have been guilty of laches; if they have delayed action until the situation of the property or the purchasers have changed so that they can not be made whole, or placed in statu quo, tlie court, upon every principle of equity, will refuse to interfere. — Vanduyne v. Vanduyne, 16 N. J. Eq. 93. It is respectfully submitted, that the cases of Bolling v. Gantt, 93 Ala. 89, and Ezzell v. Watson, 83 Ala. 120, do not establish the proposition that the motion may be made at any time within two years.
    6. There is as much reason why special circumstances should authorize the court to restrict the period as to enlarge it. Every application, as has been frequently declared, is to be determined upon its own particular facts, and the court grants or witholds relief upon principles of equity, in order to see that substantial justice is done. — Pate v. Ihnson, 104 Ala. 599 ; Hubbertv. McCol-Vum, 6 Ala. 221; Abercrombie v. Conner, 10 Ala. 293.
    Caldwell, Johnson & Acker,, for "Williams; and Joseph Carthel, for Housers.
    — The motion is made in time. Proceedings to set aside sales and motions to vacate sales are of an equitable nature. The rules which apply are analogous to the known rules of a court of equity in granting relief to a mortgagor, or those claiming under him, seeking to avoid a purchase by the mortgagee at his own sale, or a cestui que trust claiming to be relieved from a purchase by a trustee. — Coivan v. Sapp, 74 Ala. 44; Ponder v. Cheeves, 90 Ala. 117. The time in which this can ordinarily be done is two years. Though there is no fixed limit as an absolute bar, as circumstances of each case will modify and sometimes extend it. — Cowan v. Sapp, supra. Two years is a reasonable time in which to make the motion. — Alexander v. Hill, 88 Ala. 487; Ezzell v. Watson, 83 Ala. 120; Ponder v. Cheeves, 90 Ala. 117 ; Bolling v. Gantt, 93 Ala. 89.
    2. Where several distinct parcels of real estate are to be sold, what is called a lumping sale can rarely be justified. Such a sale, when objected to in due time, will not be upheld, unless special circumstances can be shown, from which it must be inferred that such sale was either necessary or advantageous. When two or more distinct lots are to be sold, the officer should always endeavor to sell them separately unless it is clear that they will bring more when offered together. If, in disregard of his duty, he should sell them in a lump, as one parcel, the sale will be set aside on seasonable application. Freeman, on Executions, § 296 ; 12 Amér. & Eng. Encyc. of Law, 214; Rorer on Judicial Sales, §§ 730, 731; Wheeler v. Kennedy, 1 Ala. 292; Mobile Cotton Press v. Moore, 9 Port. 679 ; Ryersonv. Nicholson, 2 Yeates 516 ; Groff v. Jones, 6 Wend. 522. Such a sale is prima facie void, and he who seeks to sustain it, must show its justice and. expediency. — Nesbitt v. Dallam., 28 Amer. Dec. 236; Jones v. Davis, 2 Ala. 730; Ballard v. Scruggs, 25 Amer. St. Rep. 703 ; Freeman on Executions, p. 466, § 281; Herman on Execution, § 223. A sale en masse is presumed to be injurious because defendant has the right to have each parcel separately sold so that each part may be separately redeemed. — Freeman on Executions, § 320 ; 12 Amer. & Eng. Encyc. of Law, 239 ; Ballard v. Scruggs, 25 Amer. St. Rep. 703 ; 6 General Digest, p.1209, § 96.
    3. The sale was made at an improper place. The Code, § 2907, provides that lands, when levied on under execution from any court of record, must be sold on any Monday in the month at the court-house of the county. The proof shows that the sale was made in front of the city court door in Anniston. Jacksonville has the county court-house. This sale ought to have been made at the place provided by law. In the act creating the city court, the section of the Code referred to was not repealed, but in the statute passed February 9, 1893, (Acts 1892-93, p. 341, § 15), it is now provided that lands may be sold at the court-house of the city court of Anniston. This was passed after the sale made in this case. While the construction of the legislature is not binding on the court, yet it is persuasive as to the construction put upon it by the legislature. The weight of authority is that the land must be sold at the time and place provided in the statute, and other sales would be void. — Code, § 2907 ; Freeman on Executions, § 289. Herman on Executions, says, (§ 200,p. 311), the provisions of State statutes fixing the place of sale are imperative and mandatory, and a sale at any other place is void. — Enlich on Statutes, § 430, p. 617; 22 Amer. & Eng. Encyc. 595 and notes 1, 2; 51 Amer. Dec. 769.
    4. If the sale was void for any reason, it would be the duty of the court to prevent the abuse of its process by setting aside the sale. Or, if an irregular sale to the prejudice of the parties in interest is made, the court has power to vacate it. — Ridgway v. Glover, 60 Ala. 181; 3 Brick. Dig. 584, § 120 ; Holly v. Bass, 68 Ala. 206.
   HARALSON, J.

— 1. Section 2907 of the Code provides, as to the sale of real estate under execution, that “lands when levied upon under execution from any court of record, must be sold on any Monday in the month, at the court-house of the county.” It is not denied, that if there were but one court-house in Calhoun county, the' sale of the land in question, to be legal, must have been made at that place. There is high authority for holding, that where the statute prescribes the place where real estate is to be sold under execution, it is imperative and mandatory, and a sale at any other place would be void. Herman on Executions, § 2Ó0 ; Freeman on Executions, § 289 ; Rorer- on Judicial Sales, § 779 ; Howard v. North, 5 Tex. 290 ; Grace v. Garnett, 38 Tex. 156 ; Koch v. Bridges, 45 Miss. 247.

Jacksonville is the county seat of Calhoun county, and a court house of the county is located there. The act establishing the city court of Anniston, clothed the judge and court thereof, within the precincts of the county designated, including the city of Anniston, with the same powers, authority and jurisdiction as circuit judges and chancellors, and circuit and chancery courts have and exercise. — Acts 1888-89, p. 564. It is provided therein, “that said court shall be held and the office of said clerk (of the court) and the records thereof, shall be kept at such place in the city of Anniston as may be provided by the court of county commissioners of Calhoun county the’ grand and petit jurors for said court are drawn by the jury commissioners of said county; the sheriff of the county is made the executive officer of that court, in all respects as he is of the circuit and chancery courts ; the fines and forfeitures accruing in said court are paid into the county treasury, and the salary of the judge is paid by the county. It thus appears, that said court is a part of the machinery for the administration of justice in said county, of co-equal and co-ordinate powers and authority with the circuit aud chancery courts therein, and that its records, proceedings and court-house, appertain to judicial proceedings in and belonging to the county, in the same sense and degree, as do those of the circuit and chancery courts. It may be said, therefore, that Calhoun county has two courthouses, one in Jacksonville and one in Anniston, and that sales of real estate sold at the court house in Anniston, are sales at the court-house of the county, within the meaning of said section 2907 of the Code.

2. The sale in this case was made in bulk, of a large quantity of real estate in the city of Anniston. It included the interest of the defendant, Williams, in execution, in about 27 acres lying between cercain designated boundaries, laid off, as appears from the map, into about 130 lots, with three blocks remaining not subdivided. Another part of the levy and sale, included all claim of the said Williams in sections 5, 6, 7 and 8, in township 16, R. 8 in Calhoun county, which we infer from the map submitted, and from the arguments in the cause, embrace four square miles covering a large part of the residence and business portions of the city of Anniston, with many hundred blocks subdivided into lots ; and besides, there is a very large number of lots and blocks, too numerous for one to venture, without counting very particularly, to number with accuracy ; and with such inaccuracy of description, the whole property, or defendant’s interest in it, was offered and bid off by the receiver of the appellant, The Anniston Pipe Works, in mass, for $7,026.25, to satisfy several executions against the defendant, Williams. It was agreed, and the sheriff’s deed recites the fact, that that amount of money was paid to the sheriff in consideration of which he executed a deed to the property to the purchasers, — August 16, 1892. What was the aggregate of the several executions under which the property was sold, does not appear, but it is shown, that two of the four executions, — the ones in favor of the First National Bank of Anniston, and the Birmingham Trust & Savings Company, each of which were prior liens, — were paid in full, together -with the sheriff’s costs and commissions for making the sale, and the sheriff was directed to enter upon the execution in favor of the Anniston Pipe Works, the appellant, against the defendant, W. H. Williams, a credit for the balance of the amount of said purchase money.

In respect of sales in mass, Mr. Freeman, says: “Where several distinct parcels of real estate, or several articles of personal property are to be sold, what is called a ‘lumping sale’ can rarely be justified. Such a sale, when objected to in due time, will not be upheld, unless special circumstances can be shown, from which it must be inferred that such sale was either necessary or advantageous. It is sometimes said, that such a sale will not be vacated until it is shown to have injured some one. But when two or more distinct lots are to be sold, the officer should always endeavor to sell them separately", unless it is clear that they will bring more, if offered together. If in disregard of his duty, he should sell them in a lump, as one parcel, the sale will be set aside, on a seasonable application.” — Freeman on Executions, § 296.

Holding to the same view, Mechem gives as its reason, “that no greater amount shall be sold than is necessary to satisfy the execution; and it increases competition : many persons may desire to purchase a lot or parcel who wouid not or could not purchase several or the whole quantity levied on, and where by statute a debtor is allowed a certain time for redemption, by selling in parcels, the price- of each lot is definitely fixed, thereby enabling him to redeem any portion of the property sold.” — Mechem on Executions, § 222 ;'Rorer on Judicial Sales, § 730; 12 A. & E. Encve. of Law, 214, 215, and authorities cited in each ; Wheeler v. Kennedy, 1 Ala. 292 ; Jones v. Davis, 2 Ala. 730; Mobile Cotton Press v. Moore, 9 Port. 679 — 92 ; Klopp v. Witmoyer, 43 Penn. St. 219; s. c. 82 Am. Dec. 563 ; Nesbitt v. Dallam, 7 Gill. & John., 494; s. c. 28 Am. Dec. 236.

Two witnesses for the movants swore, the one, that the property sold was worth at the time, $168,000, and the other, that it was worth $158,275. The five witnesses for the appellant swore, that the price at which it was bid off, when all the circumstances were considered, was fair. But, without reference to the adequacy of the amount bid, there can be no doubt that the defendant has presented a case, if his application does not come too late, when, under proper proceedings, the sale should be set aside.

3. As to the time within which a motion to set aside a sale of land under execution must be made, we have repeatedly held, that no inflexible rule has been or can be announced. There should always be promptness in making such a motion, the reasonableness of which is to be determined by the particular circumstances of each case. The question of laches, when involved, must be determined on equitable principles. — Bolling v. Gantt, 93 Ala. 90; Ponder v. Cheeves, 90 Ala. 117; Cowan v. Sapp, 74 Ala. 44. In the case in hand, the application was made inside of two years after the sale. The property remained unchanged, meantime, so far as appears ; and we fail to discover anything as affecting the property itself, and the relation of the purchasers to it, which would make it injurious or prejudicial to them, as for any delay that has occurred, for the motion to set aside the sale to be granted, under proper conditions, and much, that may come to defendant, if the sale is not sot aside.

But, how can a court of law deal with such a case as we have before us ? The general rule is, that a court of law has complete control over its processes, to prevent abuse and injustice ; but circumstances may arise in the execution of the orders or processes of a law court, which on account of its fixed rules, render it incompetent to administer full relief to a party seeking its aid, or to protect from injustice and injury the rights of others which have intervened. On the motion of the movants and the proofs introduced, it is evident that the sale should be set aside; but, from the answer to the motion and the evidence -introduced, it appears that the sheriff has executed a deed to the purchasers of the lots in question, which a court of law has no power to annul, and that the purchasers have rightfully paid out considerable sums of money in paying taxes and removing liens on the property, which should be refunded or secured to them. It would be manifestly inequitable and contrary to well established rules on the subject, to set aside the sale, without refunding to them the money they have paid out, and placing them in statu quo. These facts give rise to questions of law which can be properly determined only in a court of equity, and which must be adjudicated before the movants are entitled to have the sale set aside. Cowan v. Sapp, 81 Ala. 525 ; Ray v. Womble, 56 Ala. 32, supra; Littell v. Zuntz, 2 Ala. 256; Day v. Graham, 1 Gilman 446 ; Wimberly v. Mayberry, 94 Ala. 255 ; Jenkins v. Merriweather, 109 Ill. 647; State Bank v. Noland, 13 Ark. 299 ; 2 Freeman on Executions, § 310.

4. As applicable to this case, — if it should require further litigation in equity to reconcile differences the parties themselves are so competent to adjust, — we refer to the conclusions expressed in Bay v. Womble, 56 Ala. 32, supra that the purchaser in that case was entitled to the purchase money ; and if it had been applied to the satisfaction of the execution, the decree vacating the sale should secure it to him, with interest'; that it was not essential for the complainant to offer in his bill, to refund the purchase money; that the sale was compulsory, distinguishable from that class of cases, in which a complainant, seeking the 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 ; that a resale was the right of complainant, though he was unable to pay the purchaser the money he had expended ; and that the court, in decreeing the vacation of the first sale, and ordering a resale, if necessary, because of the inability of the complainant to refund the purchase money, would of course fully protect the purchaser ; but that it could not be tolerated that a judicial sale, tainted with fraud, or a breach of official duty, oppressive and grossly unjust to an unfortunate debtor, should be permitted to stand, because of the debtor’s inability to refund the purchase money.

For the reasons assigned, we must hold that the court of law was not competent to make the order it did in setting aside this sale. The defendant must seek a remedy in another forum, if he finds it necessary to do so. The judgments of the court are reversed, and the causes remanded.

Reversed and remanded.

McClellan, J., dissenting.  