Opinion
6 Div. 754.
April 18, 1918. Rehearing Denied May 30, 1918.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
L. J. Cox, of Phœnix, Ariz., for appellant. Harsh, Harsh Harsh and David J. Davis, all of Birmingham, for appellee.
The proceeding before us for appellate review is a motion to vacate and set aside a sale of the movant's lands under an execution for the collection of court costs amounting to $144; the purchaser being the successful defendant. The motion was submitted on affidavits, and the trial court granted the motion. It appears that the sheriff levied on and sold for $159 something over 100 acres of land, shown to be worth $12.50 to $15 an acre, and that movant is an aged negro, who cannot read or write.
The motion is based upon the allegation that the sale "is infected with oppression, irregularity, fraud, or error"; but the only specific allegation is that it was "oppressive to him, in that said land sold for an amount grossly inadequate to its real value." Our Code (section 4134) declares:
"Courts have full power over their officers making execution sales, and whenever satisfied that a sale made under process is infected with fraud, oppression, irregularity, or error to the injury of either party, the sale will be set aside."
No doubt the motion is technically deficient in not showing the grossness of the price inadequacy complained of by averring the value of the property sold. Allen v. Allen, 80 Ala. 154. But we think the purpose of the statute is not to require in such proceedings the technical precision exacted of pleaders in more formal proceedings, and we think the overruling of respondent's demurrer to this motion, as to this ground, was not prejudicial error as the matter was tried on its merits.
Nor is it fatal to the relief prayed that immaterial or unnecessary allegations in the motion are not proved as alleged.
In proceedings of this character our practice has always sanctioned the use of ex parte affidavits, as the cases all show. See, for example, Simmons v. Sharpe, 138 Ala. 451, 35 So. 415.
It is, of course, well settled that mere inadequacy of price is no ground for setting aside an execution sale. "But, when the inadequacy is so glaring and gross as at once to shock the understanding and conscience of an honest and just man, it will, of itself, authorize the court to set aside the sale." Henderson v. Sublett, 21 Ala. 626, cited and approved in Simmons v. Sharpe, 138 Ala. 451, 35 So. 415.
On the facts presented by the record it does not appear that the large measure of discretion intrusted to trial courts in these cases has been abused in the conclusion here reached, and we do not feel justified in controlling and directing that discretion to a different result.
So far as the ownership of the property is concerned, the party who claims it under the execution sale is manifestly estopped from denying that it is in fact the property of the defendant in execution. It was therefore not necessary for the movant to offer evidence on that question.
Let the judgment and order of the circuit court be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.