Cox v. Cox, 6 Div. 892

• Decision Date: 10 April 1958
• Docket Number: 6 Div. 892
• Parties: Sadie Belle COX v. E. E. COX.
• Court: Alabama Supreme Court

Page 23

102 So.2d 23

267 Ala. 372

Sadie Belle COX v. E. E. COX.

6 Div. 892.

Supreme Court of Alabama.

April 10, 1958.

Johnson & Randall, Oneonta, for appellant.

Finis E. St. John and Jack C. Riley, Cullman, for appellee.

GOODWYN, Justice.

This is an appeal by the respondent and cross-complainant from a final decree of the circuit court of Blount County, in equity, granting relief to the complainant and cross-respondent.

This is the second time this case has been here. The former appeal, reported as Cox v. Cox, 260 Ala. 524, 71 So.2d 275, was brought by the complainant from a decree overruling his demurrer to the respondent's cross-bill. We reversed and remanded and the case then proceeded to a final decree on the merits. All of the evidence was taken before commissioners.

On September 8, 1950, appellant, then the the wife of appellee, filed a bill for divorce against appellee in the circuit court of Blount County, in equity. On December 26, 1950, a decree was rendered by that court granting appellant a divorce, awarding her custody of the parties' two minor chidren, and vesting in her title to certain personal property. In addition, appellee was ordered to pay appellant alimony in the amount of $2,500 within thirty days, together with a solicitor's fee in the amount of $600, to be taxed as costs, and $75 per month for the education, support and care of the two minor children. The decree also provided 'that all the several amounts herein decreed to be paid by respondent shall be a lien on the lands of respondent' described in the bill for divorce

In response to a motion by appellee the decree was modified on January 12, 1951, by changing the allowance of $75 per month to a flat $600 per year payable each year on or before January 10th, and by further providing that 'such sums shall not be a lien on the property of respondent.'

On February 13, 1951, a decree was rendered in said cause directing the register to sell the lands described in the divorce decree to satisfy the sums decreed against appellee and further providing that in event sufficient funds should not be realized from such sale to satisfy the amounts decreed in favor of appellant, the register was directed 'to issue an execution commanding the sheriff to levy on any other property' of appellee in Blount County. Pursuant to this directive the register, on March 12, 1951, sold the lands of appellee described in the divorce decree. Such lands were not all the lands owned by appellee. At the sale appellant became the purchaser for $1,500. She was the only bidder at the sale. Following this sale the register issued execution commanding the sheriff to levy on the lands and property of appellee, whereupon the sheriff made his return describing the lands sold by him (included were part of the lands already sold at the register's sale and additional lands belonging to appellee) and reciting that he had sold said lands on May 7, 1951, to appellant for $1,000. In this connection it is to be noted that the sheriff's notice of sale showed the time set for the sale to be April 7. Appellant was the only bidder at that sale. The amounts of the two sales were credited to the appellee in part satisfaction of the sums decreed against him.

The present suit was brought by appellee to have the above sales set aside or, in the alternative, to effect redemption. The trial court granted relief to appellee on that aspect seeking to have the sales set aside. The decree recites that in view of such holding 'it is obviously unnecessary to proceed with the other aspect in this decree.'

The basis for the relief granted is thus stated in the decree:

'In the first aspect of the bill mentioned, one of the grounds relied on strongly by the complainant for relief is the inadequacy of the price paid at both sales, rendering the total price paid by this respondent, the wife, for the lands in question inequitable to such an extent as to shock the conscience of the Court. The total amount of the judgment in favor of respondent against this complainant at the time the decree was rendered was Thirty two hundred sixty nine and 90/100 ($3269.90) Dollars, including the court cost. The evidence shows, in fact the respondent admittedly entered into a contract for the sale of said lands for the sum of Fifteen Thousand ($15,000.00) Dollars shortly after the sales. The judgments under which these lands were sold, together with all other encumbrances, would not aggregate a sum equal to Fifty (50%) per cent of the value of the land. It is, therefore, the opinion of the Court that, because of the inadequacy of the price paid, coupled with the irregularities attendant upon said sales; the fact that there were no other bidders, together with the other evidence shown by the circumstances surrounding such sales, the complainant is entitled to relief, and said sales should be set aside.'

In addition to the foregoing, the decree contains the following:

'It further appears to the Court that the respondent has received the rents and benefits of the lands in question, together with the proceeds of the sale of a building to Blount County, to be removed for road purposes, in the sum of Two Thousand ($2,000.00) Dollars, and that this said sum so received by respondent would offset the support money payments for the years, 1951, 1952 and 1953, and that the sum of Six Hundred ($600.00) Dollars under said decree would be due for the year 1954, making a balance due of Six Hundred ($600.00) Dollars for support money from the complainant to the respondent, at this time.

'It is, therefore, further ordered, adjudged and decreed by the court that the complainant be, and he is hereby, given sixty (60) days within which to pay the Register the sum of Thirty-eight Hundred Sixty-nine and 90/100 ($3869.90) Dollars, the amount of the original judgment and cost, together with Six Hundred ($600.00) Dollars, support money due for the year 1954, in default of which the Register shall sell the lands described in the bill of complaint, as having been previously sold by the register for the satisfaction of the same. Any sums paid to the Federal Land Bank and taxes by the respondent would be offset by the amount received by her, as aforesaid, for rents and the sale of said building.'

The position taken by appellant is (1) that the price she paid for the lands was not so inadequate as to justify setting aside the sales, and (2) since no question of setoff was presented by the pleadings it was error for the court to decree the setoff in favor of appellee.

(1)

In this case we are not dealing with sales to a stranger, nor with sales which have been confirmed by the court ordering them. In essence, we have a case which calls for exercise of the trial court's discretion in determining whether, under all the surrounding circumstances, sales ordered by it should be vacated.

Code 1940, Tit. 7, § 561, provides as follows:

'Courts have full power over their officers making execution or judicial sales, and whenever satisfied that a sale made under any legal process is infected with fraud, oppression, irregularity, or error to the injury of either party, the sale will be set aside.'

This court has held that the question of setting aside a judicial sale under the provisions of § 561 is one to be resolved in the exercise of a sound judicial discretion. Sieben v. Torrey, 252 Ala. 675, 677, 42 So.2d 621; De Loach v. White, 202 Ala. 429, 430, 80 So. 813; Danforth v. Burchfield, 201 Ala. 550, 551, 78 So. 904. See, also, 30A Am.Jur., Judicial Sales, §§ 122, 123 and 125, pp. 971-973. From De Loach v. White, supra, is the following [202 Ala. 429, 80 So. 814]:

'* * * The text-books and decisions make a distinction when the rights of third parties are involved, and those like this, in which only the parties to the proceedings are involved. See Roorer on Judicial Sales, § 545, 550, and notes, and our own case of Littell v. Zuntz, 2 Ala. , 260, 36 Am.Dec. 415, and cases following Branch Bank of State at Mobile v. Hunt, 8 Ala. , 886; Helena Coal Co. v. Sibley, 132 Ala. , 654, 32 So. 718.

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'Every case, however, must be decided upon its own particular circumstances.

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'This case also does not stand on the same footing as where the sale has been confirmed and conveyance ordered, and an independent suit is brought to set aside the sale. The court directing and affirming, or declining to affirm, as in this case, certainly has some discretion in granting and protecting the interest of all parties--both the owners and purchasers--and of controlling its own process; and its discretion, while a judicial one, and may be revised or controlled in some cases, it is entitled to weight and consideration by ...