PART III. CHAPTER XIV. PROCEEDINGS AFTER RETURN. Protection to Parties in Cases of Irregularity. - Setting aside Sales. How set aside.- Causes for setting aside Sales. Inadequacy of Price as a Cause for setting aside Sales. -When no Cause. -- Fraudulent Sales. - Effect of setting aside Sales. When a Sale is void, and no Title passes to a Purchaser. - Sales void for Want of Jurisdiction; Various Causes rendering Sales void. - Sales made in other Modes than prescribed by Statute.- Sales void for Uncertainty of Description. When Sales will be sustained. - 8249. AFTER the officer has performed the duties required of him in the exccution of final process, and made due and legal return thereof, there are certain other matters arising from and relating to the execution of final process, which we shall term proceedings after return. While great discretionary power must necessarily be vested in all ministerial officers in the discharge of their duties, and while the law secures to a creditor his just demand, and subjects his debtor's property to its satisfaction, it sedulously guards the debtor's interest in all the various steps leading to a sale of his property. The unfortunate debtor is not beneath its protection. It will not tolerate the slightest undue advantage over him, even by pursuing the strict forms of the law or positive rules. Among the matters to be treated of in such proceedings are the setting aside of sales; the confirmation and sustaining of sales; the application and distribution of proceeds; satis faction of the writ; redemption of property from sale; title of purchasers; of the deed, and other matters of a kindred nature. Until a return is made of the proceedings of the officer under the writ, there is nothing but a stay of execution, as provided by statute; by appeal; by writ of error; o stay bond; or by enjoining proceedings that can in any way interfere with the officer's action in regard to the writ. The process is a whole thing of itself, and when its execution is once commenced, it must be completed by the same hand that began it; therefore no irregularities or omissions by the officer can be complained of, or brought to the attention of the court, until a return is made of his proceedings, as required by law, so as to enable the court to judge of the sufficiency or insufficiency thereof, and either allow the return to be amended, or the whole proceedings to be set aside, and commenced de novo. In each of the states of the union there are statutory provisions governing the manner of executing final process and the sale of real estate thereunder. In selling property by virtue of the power conferred upon him by an execution, the officer should strictly conform to the requirements of the law from the time of the delivery of the writ to him until the return to the court from whence it emanated. The mode of levy, the appraisement, advertisement and notice of sale, and the sale, as well as the return of his proceedings, should be just as the law requires, in order that the creditor may, as speedily as possible, realize the fruits of his judgment, the debtor satisfy his debt legally, and with as little expense and sacrifice as possible, and the purchaser protected. It is the duty of all courts, when satisfied that sales made under their process are affected with fraud, irregularity, or error, willful disregard of the statutory regulations by the officer, whereby the rights of either of the parties interested are seriously affected, to set aside such sale upon a proper showing to the court under whose process the sale was made, and order a resale of the property.' 1 Brown v. Gilmore, 8 Md. 322. King v. Platt, 37 N. Y. 155. Ins. The general mode of obtaining relief in cases of this kind is upon motion to set aside the sale; and such motion must be made within a reasonable time.' It may be made at any time before the purchaser obtains possession; but should in all cases be made before a sale is confirmed by the court, where that practice is followed. By acquiescing in an improper sale for a long time the injured party will be denied relief." A party may confirm an invalid sale so that he can not afterward have it set aside. But to constitute a valid confirmation a person must be aware that the act he is doing will have the effect of confirming an impeachable transaction. The motion should specify in what the irregu Paige, 259. Veeder Co. v. Oakley, 9 4 More v. Hilton, 12 Leigh, 2. Williams v. Marshall, 4 G. & J. 377. Morse v. Royal, 12 Ves. 335. Field v. Arrowsmith, 3 Humph. 442. Roche v. O'Brien, I B. & B. 353. Lessee, &c. v. Bryson, 3 Binn. 54. Pamlee v. Henderson, Penn. 48. Mussleman V. Eshleman, 10 Id. 39.4. Harrington v. Brown, 5 Pitk. 519. Scott v. Freeland, 15 Miss. 410 Andrews v. Holson, 25 Ala. 219. larity consists in order to be sufficient.' The purchaser should be made a party, and notice given to all the parties of the application to set the sale aside.' Every court out of which an order issues, for the sale of property, or an execution issues, has under its control all sales made under its orders, or process, until final disposition is made of the same, and may exercise such control in a summary manner. The sale may be set aside, a resale ordered, or it may be confirmed, as in the judgment of the court may be just and beneficial. But no other court, than that out of which the process issues, can set it aside." $250. CAUSES FOR WHICH SALES WILL BE SET ASIDE. Sales made at improper times, or under circumstances such as would ordinarily prevent the property from bringing a fair price, or where a portion would be sufficient, if sold as requested by the debtor, to satisfy the judgment, and the officer neglects to subdivide the property, but sells en masse. A sale made on a day not named in the notice of sale, and where property is sold not described in the notice.* Dunbar v. Tredennick, 2 B. & B. 317. Maloney v. L'Estrange, I Beav. 413. Adams v. Clifton, 1 Russ. 297. Cockrell v. Cholmley, 1 Russ. & M. 425. Chalmer v. Bradley, 1 J. & W. 51. De Montmorency v. Devereux, 2 C & F. 188. Salmon v. Cutts, 4 DeG. & S. 129. Stump v. Gaby, 2 DeG., M. & G. 623. Waters v. Thorn, 22 Beav. 547. Randall v. Errington, 10 Ves. 428. Trevelyan v. Chartet, 9 Beav. 140. Sweeny v. King, 5 H. L. Cas. 627. 1 Lane v. White, 14 Wis. 585. Clive v. Green, 1 Blackf. 53. Sears v. Low, 7 Ill. 281. Jewitt v. Marshall, 3 A. K. Marsh. 151. Parks v. Pierson, I S. & M. Ch. 76. Linn v. Hamilton, 34 N. J. L. 305. Good v. Coombs, 28 Tex. 34. Eckstein v. Calderwood, 34 Cal. 658. Osborn v. Cloud, 21 Iowa, 238. 3 Loomis v. Lane, 29 Penn. 242. Deadrick v. Smith, 6 Humph. 146. Draine v. Smelzer, 15 Ala. 423. Reed v. Diven, 7 Ind. 189. Nelson v. Bowen, N. II. 544. Davis v. Campbell, 12 5 4 State v. Baker, 9 Rich. Eq. 521. March v. Ludlum, 3 Sandf. Ch. 35. King v. Platt, 37 N. Y. 155. Collier v. Whipple, 13 Wend. 224. Brown v. Frost, 10 Paige, 243. Nesbitt v. Dallam, 7 G. & J. 494. Carlisle v. Carlisle, 7 J. J. Marsh. 625. v. Ardery, 5 Ind. 213. Hadley, 10 Bosw. 587. Patterson, 5 Ark. 209. XII., § 222, 223. Swope Griffith v. Ringold v. Ante, chapter Wheatley v. Terry, 6 Kan. 427. King v. Cushman, 41 Ill. 31. Haydon v. Dunlap, 3 Bibb. 216. Williams v. Woodruff, I Duval, 257. Miller v. Hull, 4 Den. 104. State v. Byrd, 42 A sale made under an order omitting a description of the land, and not directed to any officer; or by a party other than the one named in the decree. Where a debtor is required to be furnished with notice of the levy, and none is given him before sale; or where the party has the right to elect what property shall be taken, or the order in which it shall be taken, and is not allowed to exercise that right. A sale made after stay of proceedings, or after an appeal and bond filed. On an execution which issues for a less amount than the judgment and costs. On an execution issued. after the debtor's death, without revival. At the instance of the purchaser, on account of a serious mistake in the representation of the lands." Because the property was knocked off to the purchaser prematurely, by a mistake of the officer, who did not hear a higher bid," or refuses to receive a higher bid." So when there has been surprise," or where a bid is privately received and accepted, without giving notice of it at the sale." So where the party conducting the sale had been guilty of misrepresentations.“ Ga.629. Mechanics' Bank v. Pitt.44 Mo. 6 Simmons v. Johnson, I Chit. 135. Baasen v. Eilers, 11 Wis. 277. Kaufman v. Walker, 9 Md. 229. Trotter v. Nelson, I Swan. 7. Davie v. Long, 4 Bush. 574. * Bentley v. Cummings, 9 Ark. 487. James v. Marcus, 18 Id. 421. Conkrite v. Hart, 10 Tex. 140. Shrively v. Jones, 6 B. Monr. 274. Mundy v. Bryan, 18 Mo. 29. Harper v. Hill, 35 Miss. 63. Doe v. Hamilton, 23 Id. 496. Butler v. Haynes, 3 N. H. 21. Speer v. Sample, 4 Watts, 367. Lucas v. Doe, 4 Ala. 679. Abercrombie v. Ha, 6 Id. 657. Woodcock v. Bennett, I Cow. 711. 9 Mulks v. Allen, 12 Wend. 253. Gordon v. Sims, 2 McCord Ch. 159. Ontario Bank v. Lansing, 2 Werd. 260. Laight v. Pell, I Edw. Ch. 577. 19 Cohen v. Wagner, 6 Gill, 236. Gordon v. Sims, 2 McCord Ch. 159. Anderson v. Foulke, 2 Harr. & G. 346. Campbell v. Gardner, 3 Stockt. (N. J ) 423. 11 Parker v. Pratt, 4 Halst. Ch. 104. 12 Williamson v. Dale,3 Johns.Ch.290. 13 Dickinson v. Burge, 20 Ill. 266. 14 Vaugh v. Myers, 2 Dana, 113. Lee v. Davis, 16 Ala. 516. Griffith v. Hadley, 10 Bosw. 587. Lachlan v. Reynolds, Kay, 52. Strong v. Caton, I Wis. 471. Williamson v. Dale, 3 Johns, Ch. 200. Culver v. Godfrey, 6 Beav. 97 Grissell v. l'eto, 2 Sm. & G. 39. |