Daniel v. Modawell

GOLDTHWAITE, J. This was a motion made by the plaintiff in execution against the purchaser, to set aside a sale of land sold by the sheriff The case as presented by the record shows, that, at the sale of the land, in relation to which the motion was made, the purchaser, at the instance of the defendant in execution, forbid the sale; that he then became the purchaser himself, at a price greatly below its real value; and that at the time, although the sale was not made by him, he was the acting and recognized deputy of the sheriff Under these circumstances, if the application had been made in time, and was not influenced by the other facts disclosed by the affidavits, which are made part of the record, we entertain no doubt that the sale should have been set aside. For the deputy sheriff to forbid the sale, and then to become the purchaser at an undervalue, is enough to bring it within the principle of the cases adjudicated in this court. Mobile Cotton Press v. Moore, 9 Port. 692; Abercrombie v. Connor, 10 Ala. 293; McCollum v. Herbert, 13 Ala. 291; Lee v. Davis, 16 Ala [369] 516; Henderson v. Sublett, 21 Ala. 626; Lankford v. Jackson, 21 Ala. 650. But it also appears, that the sale was made in 1848, and the application to set it aside was not made until more than four years thereafter; that the purchaser had taken possession, and had sold his interest to third persons, for valuable consideration, to one of whom, he had executed a deed of conveyance for a portion of the lands, which purchaser had again re-sold, and the second purchaser, after paying a portion of the purchase money, had gone into possession and made valuable improvements. It is true that the plaintiff in error alleges, as a reason for failing to make the application at an earlier period, that he was not apprised of the fact that the sale was forbid by the purchaser; but he knew of the sale — he knew who was the purchaser, and as he himself had been the owner of the land, and resided at or near the place where it was situated, he must also have known what the land was worth, and that the price at which it was bid off was greatly under its real value. These circumstances were sufficient to put him on his inquiry; and had he exercised that degree of vigilance which a person of ordinary prudence would have used in relation to his own affairs, as the sale was a public one, he might easily have informed himself of all the particulars which attended it. We do not think that, where the party in interest has neglected for more than four years to avail himself of the ordinary and accessible means of information within his reach, and other interests in the property have sprung up, (Lankford v. Jackson, supra,) that he should then be allowed to set aside the sale; at least in this summary way; and for these reasons are of the opinion that the motion was properly repudiated. The judgment is consequently affirmed.