Fitzgerald v. Kelso

• Decision Date: 23 October 1886
• Citation: Fitzgerald v. Kelso, 71 Iowa 731, 29 N.W. 943 (Iowa 1886)
• Parties: FITZGERALD v. KELSO AND ANOTHER.
• Court: Iowa Supreme Court

71 Iowa 731

29 N.W. 943

FITZGERALD

v.KELSO AND ANOTHER.

Supreme Court of Iowa.

October 23, 1886.

Appeal from Hardin circuit court.

Action in chancery to set aside a sheriff' sale, and a deed executed thereon. The relief prayed for in the petition was granted by the decree of the circuit court. Defendants appeal.J. H. Scales, for appellants.

Brown & Carney, for appellee.

BECK, J.

1. The record discloses the following facts. The defendant in this case, Kelso, recovered a judgment against Fitzgerald, who is plaintiff in the action before us. Land of the value of $2,050, subject to a mortgage and taxes amounting to $600, was sold on an execution for $276. Prior to the sale Fitzgerald had served a notice of appeal to the supreme court upon the attorney of Kelso. After the sale, but on the same day, the notice of appeal was served upon the clerk of the court in which the judgment was rendered, and a supersedeas bond was filed. The sale was made without redemption, and on the same day a sheriff's deed was executed to Kelso, who was the purchaser.

2. Defendants claim that the sale was without redemption, for the reason that an appeal had been taken in the case. Code, § 3102. But no appeal is taken and perfected until the proper notice is served upon the clerk of the court. Code, §§ 3178, 3179. No notice having been served, the appeal was not taken when the sale was had. It was not, therefore, within the provision of Code, § 3102, and was made subject to redemption.

3. As the deed was made on the same day of the sale, and defendants claim that it is valid, and that plaintiff has no right to redeem, and rely upon the claim to defeat this action, it was not necessary for plaintiff to offer to redeem. His right to do so has been constantly denied since the sale. He loses no right by omitting to do what defendants claim he has no right to do. The law presumes his offer to redeem would not have been accepted, and does not require him to do a vain thing, and will not defeat his right because he did not do it. We conclude that the deed was made without authority and is void.

4. The land was sold for less than one-fifth of its value. Under the circumstances of the case we think the price is inadequate, and, in view of the fact of this inadequacy and the clearly-established attempt to oppress plaintiff by the denial of his right to redeem, we think equity requires the sale to be set aside.

The decree of the court setting aside the sale and sheriff's deed is affirmed.

NOTE.

EXECUTION SALE--SETTING ASIDE FOR INADEQUACY OF PRICE AND UNFAIRNESS. An execution or other judicial sale will not generally be set aside for mere inadequacy of price. Graffam v. Burgess, 6 Sup. Ct. Rep. 686; S. C. 18 Fed. Rep. 251, and 10 Fed. Rep. 216; Smith v. Black, 6 Sup. Ct. Rep. 50;Coolbaugh v. Roemer, (Minn.) 21 N. W. Rep. 472;Weaver v. Lyon, (Pa.) 5 Atl. Rep. 782, and note, Evans v. Maury, (Pa.) 3 Atl. Rep. 850; In re Ewing, 16 Fed. Rep. 753; In re Third Nat. Bank, 4 Fed. Rep. 775; Central Pac. Ry. Co. v. Creed, (Cal.) 11 Pac. Rep. 772;Capital Bank v. Huntoon, (Kan.) 11 Pac. Rep. 369; but it may be, in the discretion of the court, Loyd v. Loyd, (Iowa,) 16 N. W. Rep. 117; which is not to be exercised arbitrarily, Hughes v. Swope, (Ky.) 1 S. W. Rep. 394. The sale will be set aside, and a resale ordered, if the inadequacy be gross, In re Palmer, 13 Fed. Rep. 870; In re Lloyd, 11 Fed. Rep. 586; Blackburn v. Selma R. Co., 3 Fed. Rep. 689; or if attended by circumstances showing fraud or unfairness in its conduct, Graffam v. Burgess, 6 Sup....