Fox v. Jackson
| Decision Date | 31 January 1946 |
| Docket Number | 17425. |
| Parties | FOX v. JACKSON et al. |
| Court | Indiana Appellate Court |
Appeal from Whitley Circuit Court; Lowell L. Pefley, Judge.
Kissinger & Kissinger, of Columbia City and Thomas F. Fitzgerald, of Mentone, for appellant.
Whiteleather & Whiteleather and Gates & Gates, all of Columbia City, for appellee.
A second mortgage on appellant's farm was foreclosed in the Whitley Circuit Court. In due course the appellee Jackson, a stranger to the foreclosure proceedings, purchased the property from the appellee Fisher, sheriff of Whitley County at the sale pursuant to foreclosure decree.
This action was brought by the appellant against the appellees to vacate and set aside the sale and the deed executed pursuant thereto. Whether the parties to the foreclosure suit, or any of them, should have been made parties defendant in this action is a question neither presented nor considered.
On motion, the court found for the appellees on the evidence introduced by the appellant, and the correctness of that ruling is challenged here.
In resolving the question presented the court must consider as true the admitted allegations of appellant's complaint. Rule 1-3, 1943 Revision; Gavit's Pleading and Practise, Vol. I, § 21(c), p. 76. The court must also consider as true all facts which the evidence tends to prove, or of which there is any evidence, however slight, and draw therefrom such reasonable inferences as are favorable to the appellant. Lake Shore & Michigan Southern Railway Company v. Foster, 1885, 104 Ind. 293, 4 N.E. 20, 54 Am.Rep. 319; Plaskett v. Benton-Warren, etc., Soc., 1910, 45 Ind.App. 358, 89 N.E. 968, 90 N.E. 908.
So considered, it would appear from the record that the real estate in question had a market value of from five to somewhat over six thousand dollars at the time of sale. On that date at 10 A.M. the sheriff read the order of sale at the north door of the courthouse. Receiving no bids there, he returned to his office which was located just inside the north door of the courthouse. During the day he received two bids in his office. He received Jackson's bid there at about 3 P. M., but held the sale open until 4 P.M. as provided by the notice of sale. He then accepted Jackson's bid which was for the full amount of judgment and costs and which, when added to the first mortgage which he later paid, made the property cost Jackson about $3000. The sale was without relief from valuation and appraisement laws.
There is no evidence that anyone willing to make a bid higher than Jackson's was anywhere about the courthouse, or anywhere else, or that anyone who desired to bid was unable to do so. Before the sale Fox tried unsuccessfully to obtain a loan to pay off the judgment. He was not at the courthouse on the day of sale, and there is no evidence that he desired or was able to bid at the sale or pay the judgment.
The appellant contends that the amount received from the sale was grossly inadequate--that the sale was irregular in that it was not made at the courthouse door, and that these circumstances taken together are sufficient to avoid the sale.
The sale was governed by the provisions of § 3-1801, Burns' 1933, which requires the mortgaged premises to be sold at public auction at the door of the courthouse. The sale, although held at the courthouse, was not held at the required place there and it was, therefore, as contended by the appellant, irregular.
Inadequacy of price alone will not justify the setting aside of a sheriff's sale, unless the disparity between the value of the property sold and the price paid is so enormous as to shock the conscience. Gross inadequacy of price, coupled with slight additional facts showing fraud, irregularity, unfairness or other circumstances which may have operated to prevent the property from bringing something like the fair value, will avoid a sale. Wright v. Dick et al., 1889, 116 Ind. 538, 19 N.E. 306; Branch v. Foust et al., 1892, 130 Ind. 538, 30 N.E. 631. And where there is such an inadequacy of price as to work a grave injustice upon either the execution debtor or creditor, an abuse of power by the sheriff, or his failure to...
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