Bank v. Doherty , 37 Wash. 32 ( 1905 )

Per Curiam.

This is an appeal from an order vacating and setting aside a sale. In the early part of the year 1901, the respondent began an action against the appellants, in the superior court of King county, to foreclose a mortgage upon real property. In due course he recovered a judgment and decree of foreclosure in that court, and the judgment was brought here by the appellants for review. This court reversed the judgment (29 Wash. 233, 69 Pac. 732, 92 Am. St. 903), and sent the cause back with instructions to dismiss the action, holding that the same had been prematurely brought. When the remittitur went down, judgment was entered in the court helow, in favor of the appellants and against the respondent, for the sum of $101.45, being the costs in both‘courts. Execution was thereafter issued on the judgment, and placed in the hands of the sheriff, who seized and sold the respondent’s note and mortgage, which had been filed in the clerk’s office as a part of the records in the foreclosure suit.

Shortly after the sale took place, the respondent learned of the same, and immediately took steps to have the sale vacated and set aside, filing a motion for that purpose in the court out of which the execution issued. Affidavits were filed in support of and against the motion, and a hearing had, which resulted in an order vacating and setting aside the sale. The motion was based on several grounds, including inadequacy of price, irregularity in the proceedings, failure to give proper notices of the sale, or to notify the judgment debtor thereof. The order of vacation was general, setting out no particular reason.

The appellant first assigns that the- court erred in entertaining the motion to vacate the sale, because the same was not served on the purchaser at the sale; but we think this objection is met by the fact that the purchaser had parted with his interest in the note and mortgage prior to the hearing on the motion, having surrendered them to the administrator, and cancelled the mortgage of record. At the time the order of vacation was entered, the only person interested in upholding the sale' was the administrator, and there is no questio'n that he had been served with notice of the proceedings — in fact, he appeared and engaged actively in defending it

On the main question, we are not inclined to disturb the holding of the trial court. The note, sold had an actual value in excess of $2,400, and was sold for only $110.20. This alone appeals strongly to the conscience of the court, and although it perhaps is the rule that inadequacy of price alone is not usually a sufficient ground to set aside the sale, we think that in this case, in view of the manner in which possession of the note was obtained, and the whole surroundings, it should be allowed to prevail. This view of the case renders other questions discussed immaterial. The order appealed from will stand affirmed. '

The judgment is affirmed.