Gaskill v. Neal

• Citation: 293 P.2d 957,61 A.L.R.2d 501,77 Idaho 428
• Decision Date: 21 February 1956
• Docket Number: No. 8261,8261
• Parties: , 61 A.L.R.2d 501 Mattie O. GASKILL, a Widow, Plaintiff-Respondent, v. Bernice NEAL, Defendant-Appellant, M. W. Crouch, as Administrator of the Estate of F. E. Neal, deceased, and Alvin R. Madsen, Defendants.
• Court: United States State Supreme Court of Idaho

Page 957

293 P.2d 957

77 Idaho 428, 61 A.L.R.2d 501

Mattie O. GASKILL, a Widow, Plaintiff-Respondent, v. Bernice NEAL, Defendant-Appellant, M. W. Crouch, as Administrator of the Estate of F. E. Neal, deceased, and Alvin R. Madsen, Defendants.

No. 8261.

Supreme Court of Idaho.

Feb. 21, 1956.

S. T. Lowe, Kales E. Lowe, Thomas H. Church and Herman E. Bedke, Burley, for appellant.

Nielson & Nielson, Burley, for respondent.

ANDERSON, Justice.

This is an appeal from an order granting a motion to set aside a sale of real estate and a certificate of redemption made by the sheriff of Cassia County, Idaho, pursuant to a decree of foreclosure.

January 10, 1950, Bernice and F. E. Neal, husband and wife, gave a promissory note and a securing mortgage for $7,500 to Mattie O. Gaskill, plaintiff and respondent, the mortgage incumbering personalty consisting of a hoist or lift, an air compressor, gasoline pumps and tanks, and lubsters, and realty described as lots 7 and 8, block 5, Miller's First Addition to Burley, Idaho. In January, 1951, Alvin R. Madsen obtained a judgment against the Neals which became a lien against the mortgaged real property, but subsequent to and subject to the lien of the said mortgage.

March 2, 1953, Neal died intestate, and thereafter M. W. Crouch was appointed administrator of his estate. Thereafter respondent brought foreclosure proceedings, and waived recourse against any other property of the decedent. She made as defendants Bernice Neal; M. W. Crouch, as said administrator; and Alvin R. Madsen, the aforementioned judgment creditor. Judgment was obtained in the sum of $11,086.81, and foreclosure sale ordered, but no provision was made for any deficiency judgment.

The sheriff's sale was held June 30, 1953. The personal property was sold first, for various amounts, part to Mrs. Gaskill and part to Madsen, after which Madsen's attorney requested that the real property be sold in two parcels. This was done, the sheriff selling first lot 7, on which Madsen's attorney bid $200, and Jess Parsons, as agent for Mrs. Gaskill, bid $201, which was the highest bid, and the property was declared sold to Mrs. Gaskill. The trial court found that the identical thing happened relative to lot 8, except that after Jess Parsons, agent for Mattie O. Gaskill, bid $201, and before the property had been sold, he requested permission to withdraw his bid and bid the entire amount due under the judgment, less the amounts he had previously bid. Madsen's attorney objected, and the sheriff refused Parsons' request, and the property was sold to respondent, Mrs. Gaskill, for $201.

The above-mentioned facts are not disputed, but the evidence is conflicting as to whether or not any objection was made at the time Madsen's attorney requested that the property be sold in two parcels. Lots 7 and 8 run east and west, and the buildings thereon north and south, or substantially so. A fence separated portions of the lots on which the house and the garage are located, but the fence goes through both lots, and does not follow the dividing line of the lots, and the house rests partly upon each lot, and so does the garage. The evidence discloses that the sheriff knew of the cross-wise location of the buildings prior to the commencement of the sale, he having been so informed by M. W. Crouch and Jess Parsons. They requested that the lots be sold as one parcel.

After the foreclosure sale, Melvin Cook, son and agent for appellant Bernice Neal, negotiated on many occasions with Jess Parsons, agent for respondent. They agreed that Parsons would try to sell the property at private sale, pay the amount due respondent on her judgment, and the balance, if any, to appellant. One interested purchaser was found, but no sale consummated.

The negotiations continued until a few days before June 29, 1954, when appellant redeemed the real property at 4:25 p. m. for the sum of $402 plus costs, making a total of $426.12, which money is still being held by the sheriff. At this time the property was worth approximately $11,000. June 30, 1954, the last day of the period for redemption, respondent made a motion to set aside the foreclosure sale and the certificate of redemption, which motion was amended September 3, 1954. After a hearing on the amended motion, at which evidence was produced, the district court on November 3, 1954, held that the sheriff's sale and certificate of redemption were void, and ordered that a re-sale be made of the property. From this order Bernice Neal prosecutes this appeal.

She sets forth several assignments of error; but as we see it the main and determinative questions in this case are whether or not the foreclosure sale and the redemption were valid and legal, and whether respondent was guilty of laches in bringing this action.

Generally, a motion or other similar application to set aside an execution sale must be made promptly and without unreasonable delay, but there is no universal rule fixing the period of time within which the application may and must be made. 33 C.J.S., Executions, § 238, b, p. 497. Respondent explains her delay in moving to set aside the sale in that the negotiations between the parties in an effort to sell the property for enough to pay the full amount of the judgment and to leave a balance over for the appellant lulled her into a false security. A party may be estopped from urging the defense of laches where his conduct contributed to the delay. Austin v. Hallmark Oil Co., 21 Cal.2d 718, 134 P.2d 777, 787; Nadel v. Zeligson, 207 Okl. 658, 252 P.2d 140, 145.

Appellant contends...