Costigan v. Truesdell

Opinion op the court by JUDGE PAYNTE'R Affirming. This action was instituted to settle the estate of Anna W. Covington, and, there being but little personal property, it was necessary to sell-real estate. A building association held a mortgage on the real estate, and there were some other creditors, including Costigan, who did not have a lien upon it. The court-ordered it sold to satisfy the debts, and it was sold for that purpose on February 4, 1903, and it was purchased at the commissioner’s sale by the appellee Truesdell at' less than two-thirds of its appraised value. On February 14, 1903, the sale was confirmed. The proceeds of the sale only paid the mortgage creditor and costs of the suit, leaving the demands of the other creditors unsatisfied. On March 28,-1903, the court ordered the equity of redemption sold,' but for some reason not appearing in the record that order was never executed. In November,' 1903, W. G. lVagenlander filed a petition asking to be made a party to the action, claiming he had a debt of $30 against the estate secured by mortgage on the real estate. He seems to have abandoned his claim, as he took no further steps to enforce it, and he is not here complaining, so the questions here for review are not affected by the alleged claim of Wagenlander. On February 2, 1904, two days before the time for the redemption of the land expired, the appellant, Costigan filed what is denominated as an answer and cross petition, by which lie sought to set aside the sale to Trues-dell, claiming the land had been sold for a grossly . iñude-' qua to price. After the expiration of the time for redemp [74] tion, Costigan filed an amended answer and cross petition, in which he avers that,'if the property is resold, hé would pay $550 for it. 'This court has repeatedly held that a mere inadequacy of price is not sufficient to set aside a sale. If it had been a good ground for setting aside the sale, the question was raised too late, as the sale had been confirmed months before. Except upon the grounds stated in section 518, Civ. Code Prac., the court was without power to set aside the sale after it had been confirmed. Thompson v. Brownlie, 76 S. W., 172, 25 Ky. Law Rep., 622; Carpenter v. Strother, 16 B. Mon., 295; Yocum v. Foreman, 14 Bush, 494; Megowan v. Pennebaker, etc., 3 Metc., 502; Dawson v. Litsev, 10 Bush, 411; Kinkaid v. Tutt, 88 Ky., 392, 10 R., 1006, 11 S. W., 297; Bean, etc., v. Haffendorfer, 84 Ky., 685, 8 R., 739, 2 S. W., 556, 3 S. W., 138. The fact that Wagen-. lander was not made a party does not alter the case. Thompson v. Brownlie, supra. Besides, he did not establish his claim. It may not have existed in law. After the sale to Truesdell, the equity of redemption could have been sold, and the court so ordered. It was not sold; and the failure to execute the order could not prevent the termination of. the statutory right to redeem. It only existed for one year after the sale, and during that time there was not even an offer to redeem. Bethel v. Smith, 83 Ky., 84, 7 R., 15. It is averred in the amended answer that Truesdell took possession of the property after his purchase, and that the value of the rents was $12 per month. If he did so before the expiration of the time for redemption, he is liable to the owners for the rents. That question can not be determined in this action, bécause- the court did not place the property in the hands of its receiver, and the owners were [75] entitled to enjoy tlie use- of the property until the court did so, or until the time for redemption expired. The rents were not assets of the estate, but a claim in favor of husband and heirs at law of the decedent. The appellant Costigan slept on his rights, and thus failed to collect his claim. The judgment is affirmed.