St. Paul Trust & Sav. Bank v. Olson

• Decision Date: 28 February 1925
• Citation: 202 N.W. 472,52 N.D. 315
• Court: North Dakota Supreme Court
• Parties: ST. PAUL TRUST & SAVINGS BANK et al. v. OLSON et al.

52 N.D. 315

202 N.W. 472

ST. PAUL TRUST & SAVINGS BANK et al.

v.OLSON et al.

Supreme Court of North Dakota.

Dec. 29, 1924.

Rehearing Denied Feb. 28, 1925.

Syllabus by the Court.

Pending an appeal by the defendant in an action to foreclose on certain real property, the Supreme Court ordered that the sale on execution of the property involved be stayed and postponed until after the final disposition of the cause. The judgment appealed from was affirmed, but the court expressed a doubt as to the propriety of the sale on the postponed date, and ordered that appellant might, if he so desired, apply to the district court for the publication of a new notice of sale. Such application was made and conditionally denied and the sale had. Held, that the trial court, having denied the application for a new sale and having ordered the sale to proceed, thereby exhausted its discretion under the mandate of the Supreme Court, and the sale, having been made, must be treated and considered the same as any other sale of real property on execution.

Section 7752, C. L. 1913, providing for the confirmation of a sale on execution, contemplates an ex parte application only, and the court may look no further than the face of the return. If it appear therefrom that the proceedings were regular, then the sale must be confirmed.

Whether a sale on execution shall be set aside is a matter which rests in the sound discretion of the lower court, and the court's action in that regard will not be disturbed, unless an abuse of discretion be shown.

Mere inadequacy of price will not, in the absence of exceptional circumstances, warrant the setting aside of an execution sale.

Record examined, and held, for reasons stated in the opinion, that the sale was a fair sale and should not have been set aside.

Additional Syllabus by Editorial Staff.

Where loan secured on land sold was due in November, 1921, and was not paid, nor was interest paid, and taxes had not been paid for five years, owner was not entitled under Laws 1919, c. 132, giving him possession, rents, and benefits during year of redemption to have sale delayed until such date as would give him opportunity to gather 1925 crop therefrom, which might enable him to redeem.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by the St. Paul Trust & Savings Bank against Jourgen Olson and others. From an order denying motion to confirm sale on foreclosure of mortgage, setting it aside, recalling execution, and ordering new sale, the Snelling Realty Company, assignee of plaintiff, appeals. Reversed and remanded, with directions.

Christianson, J., and Bronson, C. J., dissenting.Flynn, Traynor & Traynor, of Devils Lake (C. R. Beddall, of St. Paul, Minn., of counsel), for appellant.

McGee & Goss, of Minot, for respondents.

NUESSLE, J.

This appeal is from an order of the district court of Ward county, denying a motion for confirmation of a sale of real property on execution, and setting such sale aside. The case has heretofore been before this court on appeal from the judgment. See St. Paul Trust & Savings Bank v. Olson, 198 N. W. 468. On the former appeal this court entered an order requiring the sale of the real property involved, and which sale was then being advertised as for the 8th day of March, to be postponed until April 19, 1924. When the judgment appealed from was affirmed this court said:

“In view of all the circumstances we have grave doubts if a sale of the real estate, held pursuant to the original notice of sale, would be likely to bring about a proper attendance and desirable bids at the sale. Hence it is the order of this court that, if the appellant so desires, he may apply to the district court forthwith for the publication of a new notice of sale of the real property, and, also, for a vacation of the sale of the personal property, and a new sale thereof. And, if such a sale be ordered of either the personal or real property or both of such personal and real property, that it be had in such manner, and the property be sold in such parcels and pieces as will bring the best possible price; and to that end the trial court afford the parties an opportunity to make such showing as they desire as to the manner in which the sale be had, and after such hearing the trial court make such further order in regardthereto as is meet and just in the premises, having due regard to the rights of all parties affected. It is further ordered that the remittitur be forthwith transmitted to the trial court.”

The present respondent, Olson, thereupon applied to the district court for an order requiring a republication of the notice of sale and the holding of the sale at a later date. The district court denied this motion, and-

“ordered that said sale be not stayed at this time, and that such sale be held as advertised, and that the same be offered in parts and parcels as provided by law, it being the intention of this court at this time to consider the matter of whether such sale shall be set aside upon the final hearing of said application of Jourgen Olson or upon an application to confirm said sale, it not being the intention of this court to hold that sale on this date would be to the best advantage of all parties; but, inasmuch as said sale has been advertised and bidders present, the court feels that such sale should be had, and that the court thereafter take such action on said sale as in his opinion should be done.”

Pursuant to this order, the sheriff sold the real estate to the present appellant, Snelling Realty Company, the assignee of the judgment and made a report of such sale. Thereafter, the trial court issued an order to show cause directed to Olson as to why the sale as made should not be confirmed. On the return day the respondent appeared and filed his objections to the confirmation of the sale. He urged as reasons therefor that the matter had been in litigation; that by reason thereof there was uncertainty as to whether the sale would take place and bidders were deterred from attending the sale and none, in fact, were present, excepting the appellant and its agents, and as a consequence the sale was not a fair sale and the property in question was sold at prices grossly disproportionate to and less than its real value; that if a resale were had the respondent believed that much more could be realized from the sale of such property. Both respondent and appellant made showing by affidavits. The trial court, after considering the showing as made by both sides, thereupon made its order, denying the motion to confirm the sale, set it aside, recalled the execution, and ordered that a new sale be had on application of the appellant. It is from this order that this appeal now comes to this court.

The appellant, in support of the appeal, urges that the sale should be confirmed; that, although this court in the opinion in the former case ordered that the trial court might, if it saw fit, order a sale at a later date, nevertheless the trial court, having refused in the first instance to order such sale, thereby exhausted its discretion under the mandate of this court, and the sale having been had, thereafter such sale must be considered and treated the same as any other sale on execution; that the trial court was required to confirm the sale, if on the face of the proceedings it appeared that the same was in all things regular; that there was no irregularity on the face of the record; that bidders were present; that the sale was a fair sale; that the property was struck off and sold to the highest bidder; that the price paid was adequate; that, even though inadequate, that fact alone did not warrant setting the sale aside; that there was an abuse of discretion on the part of the trial court in so doing.

[1] We are of the opinion that when the trial court, in accordance with the mandate of this court, considered and passed upon the application of the defendant for a sale at a later date, and refused to order the same, such discretion as he had under the mandate was exercised and exhausted, and thereafter, the sale having been had, it was to be treated and considered by the trial court and must be treated and considered on this appeal the same as any other sale of real property on execution.

[2] Section 7752, C. L. 1913, provides:

“If the court upon the return of any writ of execution for the satisfaction of which any real property or interest therein has been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has in all respects been made in conformity to the provisions of this chapter, the court must make an order confirming the sale and directing the clerk to make an entry on the journal, that the court is satisfied of the legality of such sale and an order that the officer make to the purchaser a deed of such real property, or interest therein, at the expiration of one year from the day of sale unless the same is redeemed as herein provided. * * *”

This section contemplates an ex parte proceeding only, and the court may look no further than the face of the return. If from this it appears that the sale and the proceedings leading up thereto were in all things regular, then the sale must be confirmed. Warren v. Stinson, 6 N. D. 293, 70 N. W. 279;Crouch v. Railroad Co., 18 S. D. 540, 101 N. W. 722.

But in this case there was more than a mere application...