CROSBY v. BANNOWSKY

1. — Execution Sale — Setting Aside — Irregularities in Judgment.

When property has been sold, under execution, for a grossly inadequate price, the court, in a proceeding to set aside the sale, will consider irregularities in the execution and in the proeedings leading up to the sale, as well as the sale itself; but errors of procedure in procuring a valid judgment can not be looked to in determining the validity of a sale made under it. (P. 451.)

In a proceeding to set aside a sale of land on a judgment for taxes obtained on service by publication on a defendant whose residence was unknown and who did not appear, the failure of the court to appoint an attorney (Revised Statutes, article 1211) to defend, and the consequent failure to give notice of the sale to such attorney, could not be considered in connection with inadequacy of price, as ground for setting the sale aside; such attorney is but an officer selected to aid the court in the trial, whose authority ceased when judgment was entered, and who could not have been served with notice of sale under article 2366, Revised Statutes. (Pp. 450-452.)

BROWN, ASSOCIATE JUSTICE.

The honorable Court of Civil Appeals for the Fourth Supreme Judicial District has certified to this court the following statement and question:

"In a suit by the State for taxes upon a certain 320-acre survey, against J.T. Crosby, judgment was on November 10, 1897, rendered against him on service by publication, his residence being unknown, for $5.40 taxes with interest and costs, amounting in all to $25.70. Crosby did not appear and no attorney was appointed by the court to defend the suit, nor was any statement of the evidence filed in the papers of the cause, as are provided by article 1346, Revised Statutes. An order of sale issued on January 17, 1898, and the tract was sold thereunder to Bannowsky for $25.70, a grossly inadequate consideration, and a sheriff's deed was executed to him. The tract was reasonably worth at that time $1000. In the proceedings by the sheriff in respect to the sale no notice of the sale was mailed or given to either Crosby or his attorney of record, for the reason that the residence of the former was unknown, and there was no attorney, the court as aforesaid having failed to appoint one.

"The present suit is brought by Crosby to set aside said sale on, among other grounds, the gross inadequacy of the price.

"The members of the court are able to agree on the question whether or not the failure to appoint an attorney to defend said suit and the failure of the judge to file a statement of the evidence, are of avail to plaintiff in the present proceeding, so far as the validity of the judgment is concerned, but disagree as to the effect the failure to appoint an attorney should have upon a sale shown to have been made for a grossly inadequate price.

"Question. Did the failure of the court to appoint an attorney to defend the tax suit and the consequent failure to give notice of sale to such attorney, afford a circumstance sufficient in connection with the gross inadequacy of consideration, to authorize the sale to be set aside?"

Answer. The fact that the trial court failed to appoint an attorney to represent the defendant in the case of State v. Crosby can not be considered in determining the validity of the sale made under the judgment rendered in that case. The judgment of the District Court being valid, irregularities in the proceedings by which it was obtained can not affect the title of a purchaser under it; such purchaser had the right to assume that the procurement of the judgment was regular. Coker v. Dawkins, 20 Fla. 152. When property has been sold, under execution, for a grossly inadequate price, the court will consider irregularities in the execution, and in the proceedings leading up to the sale, as well as in the sale itself. Irvin v. Ferguson, 83 Tex. 496; Weaver v. Nugent, 72 Tex. 272. But we have found no authority which permits a court to go behind a valid judgment in an attack upon a sale made under it, and we can see no reason why errors of procedure in procuring a valid judgment which can not affect the title acquired under it should be looked to in determining the validity of a sale made under the judgment.

Article 1211, Revised Statutes, as it appears in Batts' Revised Statutes, required the court to appoint an attorney in the case of State v. Crosby, to represent the defendant, but such appointee would not have been attorney of the defendant, but an officer of the court, selected to aid the court in the trial. He could not have bound the defendant and his authority would have ceased when judgment was entered. If an attorney had been appointed for Crosby, notice of sale could not have been served upon him under article 2366, Revised Statutes, therefore a failure to appoint could not have affected the sale, and that which could not possibly affect it can not be a material circumstance in an inquiry into the validity of a sale.