Where lands sold at judicial sale are required to be appraised, the appraisement must be upon such actual view as will enable the appraisers to judge fairly of the value of the land and improvements upon it, the mere entry on one corner of a tract of 240 acres at a distance of a half mile from the house and outbuildings not being a sufficient view.

§ 1674. Authority to sell

A sheriff or other officer of the court, in making a judicial sale, ordinarily acts under the direction of the court out of which the order of sale issues."

§ 1675. Notice

The notice of sale must be published for thirty days, and the first publication should be at least thirty days before the sale."

Under the statute directing notice to be given of the time and place of execution sales by advertisement, stating the name of plaintiff defectively will not vitiate the sale, since the officer is not required to include in his notice of sale the name of either the plaintiff or the defendant."

§ 1676. Return, confirmation, and objections

Confirmation or vacation of a judicial sale is within the trial court's sound discretion.8

Miller v. Loving, 53 P. 476, 59 Kan. 485.

5 State v. Hoover, 142 P. 1110, 43 Okl, 299.

6A printer's affidavit showing daily publication of sale notice from January 22d to February 23d, inclusive, sufficiently showed publication for 30 days before day of sale, as required by Gen. St. 1909, § 6048 (Code Civ. Proc. § 453). First Nat. Bank of Parsons v. Kennedy, 157 P. 417, 98 Kan. 51, rehearing denied 157 P. 1199, 98 Kan. 477.

Where decree foreclosing realty mortgage ordered a sale "according to law," and order of sale provided that premises "be advertised and sold ac cording to law," the publication required was that provided in Rev. Laws 1910, § 5166. Johnson v. Taylor (Okl.) 173 P. 1039. In foreclosure sale made on order of sale requiring publication under Rev. Laws 1910, § 5166, the notice of sale must be first published at least 30 days before day of sale, and continued in successive issues to day of sale. Id.

Under Rev. Laws 1910, § 5166, a publication notice for foreclosure sale first made on the 15th day of November and on each day thereafter including the 15th day of December, the sale being had on the 16th, is sufficient. Richmond v. Robertson, 50 Okl. 635, 151 P. 203.

7 McLain Land & Investment Co. v. Kelly, 66 P. 282, 11 Okl. 26.

8 In re Standwaitie's Estate (Okl.) 175 P. 542.

A sheriff's return that property was sold by him at public auction implies that it was disposed of to the highest bidder."

An order confirming a judicial sale does not conclude the parties as to the question of title under the sheriff's deed based thereon.1o Third persons whose rights are not affected cannot complain that an attorney purchases his client's realty at a judicial sale.11

The rule of caveat emptor applies to a purchaser at a judicial sale.12

Objections to confirmation of a foreclosure sale, raising no jurisdictional question, but going merely to certain trial irregularities, are concluded by the judgment rendered, and on defendant's failure to except thereto and appeal such irregularities cannot be considered.13

Confirmation ordinarily concludes objections to irregularities, but not objections based on gross errors 14 or fraud in the proceedings.15

Where a judgment creditor has made an equitable assignment of his bid at a sheriff's sale under decree of foreclosure, and the assignee has paid the purchase price, the judgment creditor has no right to defeat confirmation of the sale by dismissing the confirmation proceedings. 16

Fraser v. Seeley, 79 P. 1081, 71 Kan. 169. 10 Havens v. Pope, 62 P. 538, 10 Kan. App. 299. 11 Hayes v. Waggener, 161 P. 584, 98 Kan. 740. 12 In re Standwaitie's Estate (Okl.) 175 P. 542. 13 McCornack v. Fleming (Okl.) 172 P. 952.

14 A decree was entered in a foreclosure suit, and the sheriff sold the premises under an execution within 60 days from its issuance, but did not return the writ until the sixty-second day after its date. The sale was confirmed. Held that, it being within the power of the court to order the premises sold under special execution at the time of sale, the confirmation removed any objection on account of such irregularity, being an approval of that which the court, as to the time the return was made, had the power to order in the first instance. Price v. Citizens' State Bank of Mediapolis, 102 P. 800, 23 Okl. 723. An order of confirmation of a real estate mortgage foreclosure sale was erroneous where directing the sheriff to make a deed to the purchaser before the purchase money was paid to the sheriff. Id. 15 Objection to confirmation of sale under foreclosure held to show no such gross inadequacy of price or circumstances raising presumption of fraud as to require sale to be set aside. Wheeler & Motter Mercantile Co. v.

Wright, 64 Okl. 97, 166 P. 184.

16 Payne v. Long-Bell Lumber Co., 60 P. 235, 9 Okl. 683.

Where, at a term subsequent to the term at which an order of confirmation is made, it is moved to set aside the order, the motion. must state facts showing that movant is entitled to the relief sought.17

§ 1678. Opening or vacating sale-Forms

Mere inadequacy of price is not ground for setting aside a judicial sale; 18 but a sale may be set aside for gross inadequacy of price under circumstances showing unfair conduct of the successful bidder or raising presumption of fraud.19

Where interested parties attack the title of property offered at a judicial sale, in such a way as to deter bidders and depress values, and where the price paid for the property is greatly inadequate, the sale should be set aside.20

The purchaser is a necessary party to a motion to set aside a judicial sale.21

The court has no authority to set aside a sale on foreclosure, where the parties alleged to be affected made no effort before the sale to relieve themselves from their own negligence.22

Without fraud, or unfairness, or gross inadequacy of price, one acquiring mortgagor's interest is not entitled to have a foreclosure sale, made conformably to statute, set aside because he did not receive other than statutory notice of the time of sale, and hence was not present, especially where such failure was not attributable to the purchaser.23

17 Hall v. Holloway, 62 Okl. 192, 162 P. 186.

18 Cowles v. Phoenix Mut. Life Ins. Co., 65 P. 217, 63 Kan. 883. 19 Wheeler & Motter Mercantile Co. v. Wright, 64 Okl. 97, 166 P. 184. If unaccompanied by unfairness of successful bidder, or circumstances sufficient to raise a presumption of fraud, a judicial sale will not be set aside for mere inadequacy of price, unless it is so great as to shock conscience. Wheeler & Motter Mercantile Co. v. Miller (Okl.) 175 P. 224.

A sale will be set aside where there was a defect in the sheriff's return, and there is evidence that the price was inadequate. Evans v. Bushnell, 52 P. 419, 59 Kan. 160.

20 Wood v. Drury, 43 P. 763, 56 Kan. 409.

21 Hall v. Holloway, 62 Okl. 192, 162 P. 186.

22 McLain Land & Investment Co. v. Swofford Bros. Dry Goods Co., 68 P. 502, 11 Okl. 429.

23 Wheeler & Motter Mercantile Co. v. Miller (Okl.) 175 P. 224.

(1584)

(Caption.)

MOTION TO OPEN OR VACATE A JUDICIAL SALE

Comes now the defendant (or plaintiff), C. D., and moves the court to set aside and vacate the sale made by the sheriff in this action of the following described property, to wit: (Description of property), for the following reasons, to wit:

1. That said sale was not had on the day on which the same was advertised to be had.

2. That notice of said sale was not given by advertisement as required by law.

3. (Other grounds of objection.)

Attorney for Defendant.

(Caption.)

ORDER OPENING OR VACATING A JUDICIAL SALE

Now, on this

day of

19, this cause coming on to be heard on the motion of C. D., defendant, to set aside and vacate the sale made by the sheriff in this action of the following described property, to wit: (Description of property), the plaintiff being present by his attorney, X. Y., and the defendant by his attorney, J. K.; and the court, having examined the proceedings of said sheriff under said order of sale and being fully advised in the premises, finds that said sale was not had on the day on which the same was advertised to be had; that notice of said sale was not given by advertisement as required by law (state other grounds).

It is therefore by the court ordered, adjudged, and decreed that said sale be and the same is hereby set aside, vacated, and held for naught. Judge.

§ 1679. Resale Form of order

A court of equity has discretion as to ordering or refusing a resale of property sold at judicial sale.24

Where a party, at whose instance a sale of real estate has been set aside, fully complies with the terms imposed by the court as conditions to setting aside the sale, it is error to enjoin a resale of

24 Wheeler & Motter Mercantile Co. v. Wright, 64 Okl. 97, 166 P. 184.

HON.PL.& PRAC.-100

(1585)

the property under the judgment, merely because the officer to whom the purchaser paid the amount of his bid has made an unauthorized application of a portion of the money to the payment of taxes and costs, and refuses, for that reason, to pay to the purchaser the whole sum bid on demand.25

ORDER OF COURT OF EQUITY DIRECTING RESALE OF PROPERTY SOLD AT A JUDICIAL SALE

to be heard on the motion of the defendant, C.

D., to set aside

day of

day of

(Description of

the sale made by the sheriff herein on the 19, under an order of sale herein dated the 19, of the following described property, to wit: property), and to order a resale thereof, and the court having carefully examined the proceedings of said officer, and it appearing to the court that said sale is void for the reason that said property was sold for less than two-thirds of the appraised value thereof and at a grossly inadequate price (state other reasons).

It is therefore by the court ordered, adjudged, and decreed that said sale be and the same is hereby set aside, vacated, and held for naught.

It is further ordered that the sheriff of county, state of Oklahoma, cause the said property above described to be readvertised and resold according to law, and that due return of this order of sale be made, showing the manner in which the same has been executed, within sixty days from the date hereof.

(Sheriff's return.)

§ 1680. Collateral attack

Judge.

When a purchaser at a master's sale under a decree is himself a party to the suit in which the decree was entered, he cannot in a collateral proceeding raise a question as to the irregularity of the decree, but if the decree is irregular so that the purchaser will not

23 Chapin v. Pyle, 50 P. 499, 58 Kan. 566.