Power v. Larabee

CourtUnited States State Supreme Court of North Dakota
Citation3 N.D. 502,57 N.W. 789
PartiesPOWER v. LARABEE.
Decision Date08 January 1894

3 N.D. 502
57 N.W. 789

POWER
v.
LARABEE.

Supreme Court of North Dakota.

Jan. 8, 1894.



Syllabus by the Court.

1. Plaintiff in execution sold over 1,700 acres of defendant's land for $96. The land was worth at least $6,800. It was sold in a lump, although consisting of 11 distinct parcels. Defendant, however, attempted to redeem from the sale, and took from the sheriff, and had recorded, a certificate of redemption. In a suit brought by plaintiff in the execution, who had purchased at the sale, to have this certificate of redemption annulled, defendant asserted the validity of his redemption, setting forth facts in his answer to excuse his failure to redeem in time. Defendant paid the balance due on the judgment after receiving credit for the sum for which his property was so sold under execution, and claimed the benefit of such credit by receiving and filing a satisfaction of the entire judgment. He also waited until 16 months had elapsed since the sale, and 4 months since the time for redemption had expired, before questioning the sale. Held, that he had waived his right to have the sale set aside for inadequacy of price, and because of the irregularity in selling separate parcels in one mass.

2. Where defendant knows of the sale, and has a fair opportunity to redeem, he cannot have the sale set aside because of inadequacy of price, as the redemption right affords him ample protection against a sacrifice of his property.

3. Where defendant's right of redemption is injuriously interfered with by a sale of several parcels in a lump, the sale will be set aside on motion, if attacked in a reasonable time.

4. Ordinarily, the defendant must move to vacate the sale for irregularity at least before the redemption period has expired.

5. The sale of separate parcels in a lump does not render the sale void. It is only voidable.

6. Nor is a sale void or voidable merely because there is no one present at the sale but the sheriff and the plaintiff, who is the only bidder. Such a sale might, however, under certain circumstances, be set aside.


Appeal from district court, Barnes county; Roderick Rose, Judge.

Action by J. B. Power against J. D. Larabee to cancel a certificate of redemption of land sold on execution. From an order vacating the sale, plaintiff appeals. Reversed.

[57 N.W. 789]

J. E. Robinson, for appellant. G. K. Andrus and Herman Winterer, for respondent.


CORLISS, J.

The appeal is from an order vacating an execution sale of real estate. At the sale the plaintiff in the execution bid in the property for $96. One of the grounds on which the validity of the sale is attacked is the inadequacy of the price for which the property was sold. There were over 1,700 acres sold at the sale, and it appears that the land was worth at least $4 an acre. That this inadequacy is so gross as to shock the conscience cannot be doubted. In addition, it appears that the sheriff at the sale utterly failed to comply with the statute which required him to offer the land for sale in separate parcels. There were no less than 11 distinct tracts sold in a lump, without even an attempt to sell them separately. “When the sale is of real property consisting of several known lots or parcels they must be sold separately.” Comp. Laws, § 5144. While we are not prepared to say that after a sale has been fairly advertised and conducted, and is regular in every respect, it should be set aside on the sole ground of the inadequacy of the price bid, yet, where the statute requiring a sale in separate parcels has been so grossly violated as in this case, we would have no hesitation in setting aside the sale, were it not for the statute which permits the judgment debtor to redeem from the sale at any time within a year. We cannot see how the debtor can appeal to the inadequacy of the price as a reason for having the sale vacated. The law allows him to overthrow such a sale, to protect him against a sacrifice of his property. Where his title is divested at the sale, his only remedy to protect himself from loss is by attacking the sale itself. But, where a right to redeem after the sale is vested in him by statute, it is not necessary for him to attack the sale to save a sacrifice of his property. Indeed, he will always find it more to his advantage to redeem. By redemption he can wipe out the sale, and destroy the lien of the judgment upon the land, for a trifling sum in comparison with the value of the property on which the judgment was a lien. If the amount bid is less than the amount of the judgment, the defendant, by redemption, secures the same benefit which would accrue to him should the plaintiff voluntarily release the land from the lien of the judgment on payment of only a portion thereof, the land on which it was a lien being worth many times the amount so paid. Where the defendant has full knowledge of the sale, and an opportunity to redeem, the injustice resulting from a sale for an inadequate price will fall, if at all, upon the plaintiff, who may find that the defendant has by redemption secured the release of very valuable property from the lien of a judgment on the payment of a paltry sum upon redemption, leaving the greater portion of the judgment unsecured. It will be an interesting question, when it arises, whether the judgment creditor himself may not have a sale set aside for gross inadequacy of price when, through excusable

[57 N.W. 790]

mistake on his part, or conduct on the part of the...

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