Danforth v. Burchfield
| Decision Date | 18 April 1918 |
| Docket Number | 6 Div. 754 |
| Citation | 201 Ala. 550,78 So. 904 |
| Parties | DANFORTH v. BURCHFIELD. |
| Court | Alabama Supreme Court |
Rehearing Denied May 30, 1918
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
Suit for trespass to realty by Press Burchfield against A.T Danforth. There was judgment for defendant, and later an execution for costs was issued against plaintiff and levied upon certain land. Sale was had, and the land bought by defendant. Plaintiff's motion to set aside and vacate sale granted, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.
L.J Cox, of Phoenix, Ariz., for appellant.
Harsh Harsh & Harsh and David J. Davis, all of Birmingham, for appellee.
The proceeding before us for appellate review is a motion to vacate and set aside a sale of the movant's lands under an execution for the collection of court costs amounting to $144; the purchaser being the successful defendant. The motion was submitted on affidavits, and the trial court granted the motion. It appears that the sheriff levied on and sold for $159 something over 100 acres of land, shown to be worth $12.50 to $15 an acre, and that movant is an aged negro, who cannot read or write.
The motion is based upon the allegation that the sale "is infected with oppression, irregularity, fraud, or error"; but the only specific allegation is that it was "oppressive to him, in that said land sold for an amount grossly inadequate to its real value." Our Code (section 4134) declares:
"Courts have full power over their officers making execution sales, and whenever satisfied that a sale made under process is infected with fraud, oppression, irregularity, or error to the injury of either party, the sale will be set aside."
No doubt the motion is technically deficient in not showing the grossness of the price inadequacy complained of by averring the value of the property sold. Allen v. Allen, 80 Ala. 154. But we think the purpose of the statute is not to require in such proceedings the technical precision exacted of pleaders in more formal proceedings, and we think the overruling of respondent's demurrer to this motion, as to this ground, was not prejudicial error as the matter was tried on its merits.
Nor is it fatal to the relief prayed that immaterial or unnecessary allegations in the motion are not proved as alleged.
In proceedings of this character our practice has always sanctioned the use...
To continue reading
Request your trial
-
Wilkinson v. Wilson
...90 So. 3, 23 C. J. 978; Busick v. Watson, 72 Miss. 244; Davis v. Bell, 57 Miss. 320; Taylor v, Eckford, 11 S. & M. 21; Danforth v. Burchfield, 78 So. 904, Notes 5 and 6; Henderson v. Sublett, 21 Ala. 626; Simmons Sharpe, 138 Ala. 451, 35 So. 415; Shroeder v. Young, 40 L.Ed. 721; Byers v. Su......
-
Cox v. Cox, 6 Div. 892
...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 [......
-
Dunn v. Ponceler
... ... authorize the court to set aside the sale. Henderson et ... al. v. Sublett et al., 21 Ala. 626; Ray's Adm'r ... v. Womble, supra; Danforth v. Burchfield, 201 Ala ... 550, 78 So. 904; and Powell v. Governor, 9 Ala. 36, ... Under ... the facts averred in the bill a legal fraud ... ...
-
Beck v. Beck, 6 Div. 776
...73 Ala. 85. We will only revise the discretion of the lower court for abuse of its exercise. Taylor v. Wilson, supra; Danforth v. Burchfield, 201 Ala. 550, 78 So. 904. On review we do not weigh the evidence as regards its reasonably satisfying effect on the issue tendered, but in considerin......