Bond v. Stephens

Russell, 0. J. 1. Where a debtor, to secure a certain debt, has conveyed certain real estate subject to an outstanding security deed, and in the deed has conferred a power of sale upon the grantee, and there is an attempt to sell the equity of redemption in pursuance of the power of sale, although the debtor of course may complain that the sale was not had in compliance with the stipulations contained in the security deed, a junior general judgment creditor of the grantor has such an interest in having the equitable interest of the grantor bringing the highest possible price as that he also may be heard upon the point as to [141] whether the sale was had in compliance with the power contained in the security deed, and to show, if he can, that the failure to properly execute the power of sale conferred by the grantor has resulted in his injury. No. 4569. September 22, 1925. Rehearing denied October 3, 1925. 2. A so-called public sale, where the seller or the auctioneer places himself twelve feet within an entrance of a court-house, and the only bidder stands within the same distance from the door of the court-house, and neither of them can be seen by persons upon the adjoining streets or in the court-yard, and the sale, including the reading of the advertisement and the taking of bids, is concluded in about a minute, there being only one bidder and one other person present at the time of the sale, and there is no reading of the advertisement other than in a monotone not loud enough to attract the attention of any person except the two who are in the corridor of the court-house, and where only one bid is offered and no request is made for further bids, but the property is knocked off without delay to the maker of the single bid, when there are no persons other than those mentioned in the court-house or on the courtyard, can not be said to be a sale at public outcry within the meaning of that term. 3. Applying the principles stated in the foregoing headnotes, the court erred in sustaining the general demurrer and dismissing the petition'. Judgment reversed. All the Justices concur. P. D. Rich and Q. L. Glessner, for plaintiffs. A. H. Gray, for defendants.