Jallo v. Jallo
| Decision Date | 26 January 1945 |
| Docket Number | 33932. |
| Parties | JALLO v. JALLO et al. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. Under Minn.St.1941, s 550.18 (Mason St. 1927, s 9433), the validity of a sale in partition proceedings, which under s 558.17 (1940 Supp. s 9540) is required to be made in the same manner as the sale of real property on execution, is not affected, either as to third persons or parties to the action, by a defective notice of sale.
2. Trial court did not abuse its discretion in refusing to set aside partition sale because of defendants' claim that sale was for a grossly inadequate price, where none of such defendants opposed confirmation thereof except one, who testified to a value only slightly in excess of the sale price; and where purchaser at sale has paid over the purchase money, made improvements on the land, and otherwise changed his position in reliance upon the validity of the sale.
Appeal from District Court, Roseau County; Oscar R. Knutson Judge.
Malmberg & Nelson, of Minneapolis, for appellants.
M J. Hegland, of Roseau, for respondent.
This is an appeal by certain of the defendants from an order denying their motion to vacate a judgment entered in partition proceedings and from the judgment. The motion was based upon the grounds that (1) no proper notice of sale was given by the referees; (2) the judgment directed the referees to convey title to premises other than those involved in the proceedings and omitted parcels which were involved; and (3) the premises were sold for a grossly inadequate price.
The land in question, which was owned by plaintiff and defendants as tenants in common, consists of 520 acres in Roseau county described as follows: 'Lots 1, 2, 3, and 4 and S 1/2 NW 1/4 and S 1/2 NE 1/4 of section 5, township 161, range 40, as one farm and as one parcel, and lots 3 and 4 and S 1/2 NW 1/4 of section 4, township 161, range 40, and SE 1/4 SE 1/4 section 33, township 162, range 40.' The latter 40 acres are involved here.
In September 1940 this action was commenced. The complaint alleged the value of the premises to be $14,000, and prayed for a partition thereof, or, in the event partition could not be made without prejudice to the owners, for a sale in accordance with the statutes.
Defendants John Jallo, Annie Olson, and Marcus Lauritsen interposed a joint answer seeking dismissal of the action, or, in the event dismissal were denied, an accounting by defendant Albert Jallo for rentals due from him on the premises. Defendant Albert Jallo's answer admitted the allegations of the complaint except those relating to the value of the land, which he alleged did not exceed $7,000 in value, and further alleged that partition could not be made without great prejudice to the owners.
The trial court made findings and conclusions granting plaintiff judgment for partition. The referees appointed for such purpose subsequently reported to the court that partition could not be made without great prejudice to the owners. Thereupon, on August 14, 1943, the court made its order directing the referees to sell all the real estate at a public sale after due notice as provided by law.
The referees caused notice of sale to be published as required by statute. However, the notice incorrectly described the SE-1/4 of the SE-1/4 of section 33, township 162, range 40, as 'SE-1/4, SE-1/4, section 33, Township 161, Range 40.' On October 9, 1943, the referees made a report to the court that they had offered the premises, correctly described, for sale, first as two distinct farms, and, finding no separate bidders, then as one parcel, and had received a bid of $4,000 therefor. They recommended that the bid be rejected as not commensurate with the fair market value of the premises. On October 25, 1943, the court made its order directing the referees to reject said bid and ordering them again to offer said premises for sale after due notice as provided by law.
The referees made and published a second notice of sale dated November 15, 1943, wherein the same error again appeared with respect to the quarter section last described. At this sale, the premises, correctly described, were offered, and one D. O. Berge bid therefor the sum of $6,100. On January 8, 1944, the referees made their report to the court on the second sale, wherein they correctly described the premises and stated:
'That at the time and place of sale aforesaid, and after announcing the terms of sale, the following premises were offered for sale to the highest bidder, namely:
'Lots 1, 2, 3 and 4 and S-1/2 NW-1/4 and SW-1/2 NE-1/4 of section 5, township 161, range 40, as one farm and as one parcel, and
'Lots 3 and 4, and S-1/2 NW-1/4 of section 4, township 161, range 40, and SE-1/4 SE-1/4 section 33, township one hundred sixty-two (162), range forty (40).
'All of said premises were then offered for sale in one farm on parcel, and D. O. Berge made an offer of $6,100.00 and this being the highest offer made, said premises as one parcel or farm was sold to the said D. O. Berge for the sum of $6,100.00 subject however to the approval of the court in the above entitled action.' (Italics supplied.)
The referees further reported that they regarded the offer as fair and reasonable and not disproportionate to the value of the premises and recommended that the bid be accepted and approved by the court.
On January 18, 1944, the court made an order directed to all parties in the proceedings ordering a hearing on the referees' final report, as well as on the rights of the parties to the proceeds of the sale if it should be approved. Notice of this hearing was served on all such parties, but no one appeared in opposition to the report except defendant Albert Jallo, who opposed confirmation on the ground that the price was inadequate.
On February 16, 1944, the court made findings and conclusions and ordered judgment approving the sale and the report of the referees and directing distribution of the proceeds thereof. Therein the court, in describing the premises, made the same error that appeared in both notices. Judgment was entered, which likewise erroneously described the quarter section referred to.
By virtue of the foregoing judgment, the referees were directed to execute and deliver to D. O. Berge, upon the payment by him of $6,100, a sufficient conveyance for the transmission of title, free from all encumbrances, of the premises 'described' therein. The trial court's memorandum indicates that the purchaser has paid his money to the referees; that it has been distributed to and accepted by some of the interested parties; and that some of it has been expended for the payment of taxes on the premises. From this it may be assumed that conveyance has been made and possession of the premises delivered to the purchaser.
1. Minn.St.1941, s 558.14, Mason St.1927, s 9537, provides:
'* * * when, * * * referees are appointed to make partition, who report that the property, * * * is so situated that partition cannot be had without great prejudice to the owners, and the court is satisfied that such report is correct, it may order the referees to sell the property or such part.'
Section 558.17 (1940 Supp. s 9540) provides: 'The sale may be by public auction to the highest bidder for cash, upon published notice in the manner required for the sale of real property on execution.'
Section 550.18 (Mason St.1927, s 9433), which establishes the manner for giving notice of sale on execution, provides:
'Before the sale of property on execution notice shall be given as follows:
'(2) If the sale be of real property, on execution or on judgment, by six weeks' posted and published notice...
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