Parker v. Clayton, 7 Div. 879.

• Decision Date: 30 January 1947
• Docket Number: 7 Div. 879.
• Citation: 29 So.2d 139,248 Ala. 632
• Parties: PARKER v. CLAYTON.
• Court: Alabama Supreme Court

29 So.2d 139

248 Ala. 632

PARKER v. CLAYTON.

7 Div. 879.

Supreme Court of Alabama

January 30, 1947

Ernest E. Parker, of Gadsden, for appellant.

L B. Rainey, of Gadsden, for appellee.

FOSTER Justice.

This is an appeal from a decree of a court of equity, confirming a sale of certain lands belonging to tenants in common and heirs of an estate.

The assignments of error relate to objections filed by appellant to the report of the register who made the sale, and we will treat them in the order in which they are made.

The first four of the assignments go to the contention that there was error in the decree ordering the sale in that the court did not in that decree or otherwise fix the date on which the sale should be made.

The provided that the sale of the land should be at auction, or by private sale, by a named auctioneer, on the property, (and specified the terms of sale, and method of dividing up the land) and required thirty days' notice of the time, place and terms of sale, and description of the land by publication once a week for three consecutive weeks in a named newspaper.

Reliance is had on a statement in some of our cases that the decree of sale 'Should fix the time, place, and terms of sale, and that so important a matter should not be left to the undirected judgment of the register.' Deegan v Pake, 233 Ala. 435, 172 So. 270, 272; Marshall v. Rogers, 230 Ala. 305, 160 So. 865; Harvey v. Jenkins, 219 Ala. 121, 121 So. 419.

But appellant has misconstrued the meaning of that expression in respect to the time of sale. It refers to the time required for publication of the notice of the sale.

We have examined the original record in all those cases, and the decree in each did not fix a time during which notice should be published. The court did not mean that the decree must specify the day on which the sale should be conducted.

Assignments No. 5, 6, 7, 8, and 12 go to the objection to a confirmation of the sale on the ground that the notice as set out in the record is to the effect that the land will be sold on February 18, 1946, whereas the report of the sale shows that the sale was made on February 22, 1946, and there was no showing made that the register or auctioneer announced at the time set for the sale that it would be postponed to February 22d, and that the original notice was published once again with the statement at the bottom that said sale had been postponed, and the date when it would occur, as provided in section 722, Title 7, Code.

But we do not think that chapter of the Code relating to notices and hours of sale has application to sales made under a decree in equity, which itself shall prescribe the time of giving notice, the place and terms of sale, and the manner of publicating the notice. Anderson v. Steiner, 217 Ala. 85, 115 So. 4. The court in this instance did not give direction as to how there could be a postponement if at the advertised time the sale should not be conducted, and was at liberty, on objection and exception to the sale upon sufficient showing, to set it aside for a failure to comply with its directions in respect to the notice. But such a failure was an irregularity, which did not render the sale void, though subject to be vacated by the court ordering the sale made before it is confirmed. It was therefore in the power of the trial court to sustain this objection and exception. But it is only when such irregularity is manifestly injurious to the parties to the process or either of them, is it to be considered in determining whether the sale shall stand or be vacated. Ray's Adm'r v. Womble, 56 Ala. 32; Holly v. Bass, 68 Ala. 206; Dean v. Lusk, 241 Ala. 519, 3 So.2d 310.

While this sale is not controlled by the statutory provisions relating to sales made by order of the probate court (section...