Dean v. Lusk

• Citation: 241 Ala. 519,3 So.2d 310
• Decision Date: 05 June 1941
• Docket Number: 8 Div. 86.
• Parties: DEAN v. LUSK et al.
• Court: Supreme Court of Alabama

3 So.2d 310

241 Ala. 519

DEAN v. LUSK et al.

8 Div. 86.

Supreme Court of Alabama

June 5, 1941

Rehearing Granted June 30, 1941.

Appeal from Circuit Court, Marshall County; A.E. Hawkins Judge.

Street & Orr, of Guntersville, for appellant.

Marion F. Lusk, of Guntersville, for appellee.

THOMAS Justice.

The appeal challenges the action of the court in sustaining demurrers to the bill and the several phases thereof.

The statute that obtains is Code of 1923, § 7824, Code 1940, Tit. 7, § 535, and it is mandatory that lands levied on be sold at the courthouse. This Court has decided, however, that if there are two courthouses in the county, such sale may be made at either. Anniston Pipe Works v. Williams, 106 Ala. 324, 18 So. 111, 54 Am.St.Rep. 51.

Here the sale was made at the courthouse near where the land was situated. The lands were described by governmental surveys and we take judicial knowledge of their location and that they were near the Albertville courthouse, where the lands were sold. The grounds of demurrer directed to this phase of the bill are well taken.

The ground of demurrer directed to the bill challenging the sale of the two disconnected tracts of real estate in mass presented a question of importance. It has long been the rule in this jurisdiction that it is the duty of the sheriff to sell only so much of the lands of the defendant in execution as necessary to satisfy the writ in such official's hands.

In Jones v. Davis, 2 Ala. 730, 734, Mr. Chief Justice Collier said:

"It is the duty of a sheriff or other officer, to sell no more property than is necessary to satisfy the execution with costs, where the property levied on, is susceptible of division. In Tiernan v. Wilson, 6 Johns. Ch. [411] 414, Chancellor Kent says, The proposition is not to be disputed, that a sheriff ought not to sell at one time, more of the defendant's property than a sound judgment would dictate to be sufficient to satisfy the demand, provided the part selected can be conveniently and reasonably detached from the residue of the property, and sold separately. To the same effect, see (Hewson v. Deygert) 8 Johns. 333; (Jackson v. Newton) 18 Johns. [355] 362, and Woods v. Monell, 1 Johns. Ch. 502, and in Wheeler & McCurdy v. Kennedy, 1 Ala. 292, this Court held a similar doctrine.

"But if an officer abuses his trust in this respect, the sale is not in the absence of fraud on the part of the purchaser, absolutely void as to the excess of the property sold. True, under some circumstances, it may be set aside upon motion to the Court, or by suit in equity; but until this is done, the title of the honest purchaser must be respected. Mobile Cotton Press, etc., v. Moore & Magee, 9 Port. 679; 1 Johns. Ch. 502; 6 Johns. Ch. 411."

The later statement of this rule in respect to the sale of lands in mass by the sheriff is found in Anniston Pipe Works v. Williams, supra, 106 Ala. 324, 18 So. 111, 112, 54 Am.St.Rep. 51, wherein the court said:

"The sale in this case was made in bulk, of a large quantity of real estate in the city of Anniston. * * *

"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.' Freem, Ex'ns, § 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 would 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, Ex'ns, § 222; * * *."

The reasons for this rule are as stated in opinions that such action by the sheriff tends to embarrass the free bidding at such sale, tends to confuse or ignore the rule of selling no more property than is required to satisfy the execution in question.

It is further insisted here that the result would seriously affect the right of redemption. However, our later decisions are to the effect that redemption cannot be effected by piecemeal, but must be of the entire tract sold. Hargett v. Franklin County, 212 Ala. 423, 103 So. 40. "The process contemplated and required by the statutes makes an indivisible entity of the 'act of redemption.' Morrison v. Formby, 191 Ala. 104, 105, 67 So. 668, 669; Cowley v. Shields, 180 Ala. 48, 56, 60 So. 267; Connecticut General Life Ins. Co. v. Weldon [D.C.], 246 F. 265, 268; Duncan v. Hubbard, 234 Ala. 202, 203, 174 So. 291, and cases cited therein." Code of Alabama 1940, Tit. 7, p. 576.

That is to say, the appellant insists that the general rule resulting from the foregoing decisions and that of the text-books is that if lands are sold in mass, redemption must be in mass. 23 Corpus Juris, 713; Freeman on Execution, § 296; Oldfield v. Eulert, 148 Ill. 614, 36 N.E. 615, 39 Am.St.Rep. 231; Francis et al. v. White, 160 Ala. 523, 49 So. 334; Lord v. Blue, 200 Ala. 521, 76 So. 463; Snow v. Montesano Land Co. et al., 206 Ala. 310, 89 So. 719.

The effect of the demurrer to this phase of the bill is by inference to challenge the necessity for the sale of both tracts of land to satisfy the execution. The bill, however, is a direct attack upon the sale where the plaintiff in execution is the purchaser and the land is sold in mass.

In Dunn v. Ponceler et al., 235 Ala. 269, 270, 178 So. 40, it was declared: "An equity court will entertain bill to vacate execution sale of property under judicial process and cancel deed to purchaser as cloud on execution defendants' title, where circumstances attending sale were such as to render it voidable at latter's election, though bill is not brought by one in possession of property; legal remedy of vacation of sale only being inadequate." See also Lee v. Davis, 16 Ala. 516, 521; Mobile Cotton Press & Bldg. Co. v. Moore & Magee, 9 Port. 679, 689; McCaskell v. Lee, 39 Ala. 131; Lockett, Adm'r v. Hurt et al., 57 Ala. 198.

The averments of the bill do not sufficiently challenge the injury that resulted in the bid at sheriff's sale or assert that such bid was grossly inadequate. The prayer of the bill was that at the hearing of the cause a decree be entered setting aside and annulling said sale and decreeing and adjudging that it be held for naught; meaning, we take it, to remove the cloud on the title. We are of opinion that the grounds of demurrer to this phase of the bill were well assigned.

An irregularity in the conduct of the sale, such as failure to give the notice required by statute or to post notices of the sale at the courthouse door, has been held insufficient to render the sale void on collateral attack. Bonner v. Lockhart, 236 Ala. 171, 181 So. 767; Code 1940, Tit. 7, §§ 531, 536. This being a direct attack on the levy and sale in a court of equity the allegations of the bill challenging the sufficiency of the notices, for the levy and sale under the statute, (Code 1923, §§ 7819, 7825), are not sufficient in that they fail to allege injury. Ray's Adm'r v. Womble, 56 Ala. 32.

It results that since the injury as to this phase of the bill was not properly shown, the demurrers were properly sustained. The judgment of the circuit court is affirmed. Holly v. Bass' Adm'r, 68 Ala. 206.

Affirmed.

GARDNER, C.J., and BROWN and FOSTER, JJ., concur.

On Rehearing.

THOMAS Justice.

The rule of the courts as to the sale of separate tracts of land, under execution, is stated in our decisions and those of other jurisdictions. 23 Corpus Juris, § 589, p. 632.

We noted on original consideration the following decisions Anniston Pipe Works v. Williams, 106 Ala. 324, 18 So. 111, 54 Am.St.Rep. 51, and Jones v. Davis, 2 Ala. 730. There are two other decisions of this court that have been called to our attention. See Wheeler & McCurdy v. Kennedy, 1 Ala. 292, and Brock et al. v. Berry, Demoville & Co., 132 Ala. 95, 31 So. 517, 90 Am.St.Rep. 896. The last-cited cases will now be considered. In Wheeler & McCurdy v. Kennedy, supra, the Chief Justice observed: " * * * If it would have allowed of division, it was the duty of the sheriff to have sold only so much of the land, as was necessary to pay that execution; but having sold it en masse, and an excess of money remaining in the hands of the sheriff, the party having title, after the lien was discharged, must, upon every principle of reason and justice, be entitled to receive it." We do not find that this decision has since been cited. In Brock et al. v. Berry, Demoville & Co., supra [132 Ala. 95, 31 So. 518, 90 Am.St.Rep. 896], it is said: "The evidence shows, that the property was sold in mass, including said soda fountain, or in what is called a 'lumping sale,' which, in a case of sale of personal property under execution, can rarely be justified. Crok.Sher. § 495; 2 Freem.Ex'ns, § 296; [Anniston] Pipe Works v. Williams, 106 Ala. 324, 18 So. 111, 54 Am.St.Rep. 51. The evidence tends to show, that by this character of sale,...