James P. Coker, Defendant and Appellant, vs. DeWitt C. Dawkins, Plaintiff and Respondent, 20 Fla. 141

The Chief Justice delivered the opinion of the court. The appellant assigns for error the finding of the court, that, petitioner had, before judgment was recovered by Mrs.

Pittman, paid her or her agent forty dollars, in consideration of which she agreed to dismiss the suit she had commenced against him, and that for her omission to dismiss the suit and taking judgment, the execution was illegal and void. • Assuming that the facts alleged in the petition are material in this proceeding against the purchaser to set aside the sale and the deed, and the material facts being at issue b}7 the answer, we will examine the testimony. • Mr. Dawkins, petitioner, testifies as follows : “The judgment in favor of Mrs.

Pittman was obtained in a suit brought against the petitioner and one or more co-defendants, John E. Moseley being one of them. After said suit was brought the said Moseley handed me forty dollars to be paid to Mrs. Pittman upon the condition, solely, that said suit he dismissed. I saw Mr. T. M. White, who, acting as agent for Mrs. Pittman, received the forty dollars and placed the same as a credit on the cause of action in said suit, expressly agreeing to dismiss said suit, and expressly promising to instruct Mr. Jesse Norwood, the plaintiff’s attorney therein, to dismiss said suit.

This was before the return day. Mrs. Pittman acquiesced in the transaction. There was no appearance in consequence of said agreement and judgment by default was taken, of which the petitioner had no knowledge or information until he had notice of the said sheriff’s sale. The said suit was not defended, presuming it was dismissed.” This is all the testimony on the part of petitioner upon this branch of the case. On the part of the appellant, Ooker, Thomas M. While, being sworn, was asked, “Did or did not D. C.

Dawkins, in 1863 or 1864, pay you any money as the agent of Martha Pittman, upon a note then in suit in the Circuit Court of Jackson county, against D. 0. Dawkins, Moseley and others? D' yea, state if you, as the agent of Martha Pittman, consented and agreed to dismiss said suit? Did you, at any time, agree with D. C. Dawkins to dismiss a suit pending in the Circuit Court of Jackson county by Martha Pittman against said Dawkins and others, or where said Dawkins was a party defendant ” ? Answer: “ I do not remember that he 'did. Mrs.

Pittman hired to Dawkins about that time a negro, and the negro was taken before the year was out, and this I believe ■was allowed as a credit on the note, and this is the only transaction that I ever had with Dawkins relative to Mrs. Pittman’s business. I made no agreement as I recollect. I did not agree to dismiss any suit, having no authority to do so.” " There was no cross-examination of Mr. "White on this subject, and this is the whole testimony upon the point. Neither the execution nor the judgment against the petitioner in favor of Mrs.

Myrick, nor the note or other cause of action which was the basis of the judgment, were in evidence, nor the amount of either of them shown in any way. We infer that the claim which entered into the judgment was more than forty dollars, because Mr. Dawkins testifies that the forty dollars was “ placed as a credit on the cause of action in that suit.” Mr. Dawkins does not show that the forty dollars so Claimed to have been paid was not credited to him in entering the judgment, nor that the judgment was for any sum of money not due from him; nor does he say that he had any. defence to the action.

In the absence of proof to the contrary we must presume that the judgment was regular and in due form, and that the execution was regularly issued upon the judgment.

After eight or ten years from the entry of the judgment, when the execution is about to be enforced, the defendant, who is an attorney in the same court, is surprised- to find that a judgment was entered against him, and now on filing his petition to set aside the sale upon the ground of the alleged agreement not to enter a judgment, and after twelve years of litigation, under the petition, fails to prove the agreement except by the testimony of one witness who is positively contradicted by the person with whom it is alleged the agreement was made, and there is no testimony whatever to show even that he was the agent of Mrs.

Pittman for any such purpose. The allegation, therefore, that the judgment.was entered in violation of the alleged agreement is not proved, aud it. was error to find otherwise. In the petition it is alleged that on the day of the sale, and before it was made, the petitioner tendered to the sheriff an affidavit that the execution “ was illegally obtained, with a proper bond accompanying said affidavit,” to which the sheriff paid no attention and proceeded with the sale.

This is supposed to have reference to the provisions of the act of 1834, (McClellan, p. 524,) which authorizes the party to tender to the sheriff an affidavit of illegality of an execution, “ stating the cause of such illegality,” and giving bond, &c. Whether the affidavit and bond were such as the law requires is not shown, as the record does not give a copy, nor are the contents stated. We cannot, therefore, say that it was the duty of the sheriff' to stop proceedings under the execution.

A bona fide, purchaser at a sheriff’s sale is protected by the presumption that the judgment of a competent court of record has been correctly rendered and that the execution in the hands of the officer has been regularly issued. He may fairly presume that the sheriff in the discharge of his duties has acted according to law. Givan vs. Hoe, 5 Blackf., 260; Coriell vs. Ham., 4 Greene, Iowa, 455; and see authorities cited by the court in Newton’s Heirs vs. State Bank, 22 Ark., 19, 28. It is further alleged for error that the court found and decreed that the property was not fairly sold to Coker.

The testimony shows that the petitioner and Coker and a considerable number of other persons were present at the sale, that the property was offered for sale and Coker and .one.Hamilton bid for it. A bid was finally made of $475, and after crying this bid for some time Coker inquired whether that was his bid, and it was announced by the sheriff'in a loud voice that it was Coker’s bid ; Hamilton, who had been conferring aside with Hawkins, then inquired whose bid it was, and the sheriff informed him it was Colonel Coker’s bid.

After crying the bid for some time longer, and no other bid being made, the sheriff struck down the hammer, (having first announced “ going,” “ last call,” &c.,) and proclaimed the property sold to Colonel Coker. Immediately Hamilton said he thought it was his own bid and demanded that the 'bidding be resumed, offering to bid five dollars more ; but Coker objected, claiming the property, and stating his readiness to pay the money. After some parleying the sheriff concluded he had.no right to open the sale and so declared. He then executed a deed to Coker and received the money.

There is testimony that when the $475 bid was made some person said “ by two,” or “$475 by two,” but it does not appear that the sheriff 'heard it, nor does it appear clearly that Hamilton claimed the bid until after the property was knocked down to Coker, although he was informed before the close of the sale that it was Coker’s hid. This is the effect of all the testimony on this subject, as we understand it. We fail to discover any evidence of partisanship or unfairness in conducting the sale.

If Hamilton bid the same amount as Coker he should have claimed the bid or raised it when informed that it was Coker’s hid and before the sale to Coker was cried by the sheriff, as it appears he had abundant opportunity to do so. His offer afterwards to raise the bid five dollars was not of sufficient importance to raise a presumption of unfairness on the part of the sheriff'. Heither was there anything in the conduct of Colonel Coker showing any unfairness on his part or tending to prevent a fair sale or to prevent competition in bidding. Tor aught that appears here he is a bona fide purchaser.

The sale was completed so far as the bidding was concerned, and if there was no unfairness on the part of the sheriff or the parties or bidders, the purchaser had á right to insist upon the bargain. “As soon as the hammer is struck down the bargain is considered as concluded, and the seller has no right afterwards to accept a higher bid, nor the buyer to withdraw from the contract.” Blossom vs. R. R. Co., 3 Wallace, 196, 206; citing Story on Sales, §461; Rutledge vs. Grant, 4 Bingham, 653; Cook vs. Oxley, 3 Tenn., 654; Adams vs. Linsdell, 1 B. & Ald., 681.

It is alleged in the petition that the sale was advertised at Pensacola, two hundred miles from place of sale. The defendant, Coker, answers that he is informed that this is true, but says that the law required the sale to be advertised in a paper printed at Pensacola. Tliere is no proof on the subject. The petitioner was present at the sale and made no objection to it on the ground of want or regularity of notice.

It is charged in petition that persons were deterred from attending and bidding at the sale by the fact that Colonel McClellan, the attorney for plaintiffs in the executions, informed them on the morning of the sale day -that there would be no sale. It is but just to Colonel McClellan to give his testimony on this matter. He says that on the morning of the sale Mr. Dawkins told him that he had arranged the executions of Barnett, Pender and Uyrick, and that there would he no sale, and Colonel McClellan mentioned this to some persons. “An hour later he ascertained that this statement of Dawkins was incorrect.

I met him and told him he was laboring under a mistake as to having arranged the executions.. He then pulled out an affidavit and bond in regard to the Pittman execution.” If any were kept away from the sale from the course stated it was.not the fault of Colonel McClellan. Another ground on which the sale was set aside by the Chancellor was the inadequacy of price for which the lots were sold.

The testimony of various witnesses is that the property was worth $750 to $1300, and that the selling value of it was much affected by the facts that the property was much out of repair, and that there was a lega! controversy pending in regard to the title. The attitude of Mr. Dawkins also in forbidding the sale and threatening legal proceedings to set it aside had some influence in .the opinion of some witnesses. “ Inadequacy of consideration is not, of itself, a distinct principle of relief in equity. The common law knows no such principle. The consideration, he it more or less, supports the contract.

Common sense knows no such principle. The value of a thing is what it will produce, and admits no precise standard. * * * If courts of equity were to unravel all these transactions they would throw everything into confusion and set afloat the contracts of mankind. Such a consequence would, of itself, be sufficient to show the inconvenience and impracticability, if not the injustice, of adopting the doctrine that mere inadequacy of consideration should form a distinct ground for relief.” 1 Story’s Eq. Jur., §245 ; Erwin vs. Parham, 12 How., U. S., 197, 206; White vs. Duncan, 7 Ves. Jr., 34; Livingston vs.

Byrne, 11 Johns., 557, 566; Hardy vs. Heard, 15 Ark., 189; Williamson vs. Dale, 2 Johns. Ch., 272; Roe vs. Ross, 2 Ind., 99; Newton’s Heirs vs. Bank, 22 Ark., 19. In Livingston vs. Byrne, Yates, J., says: A sale made at auction and under process of law ought not to be invalidated lor mere inadequacy of price, without other circumstances to justify it. It is necessary to secure proper confidence on the pai’t of the purchasers at sales of this description, and to render titles,-if fairly obtained, certain and not liable to be impeached by Auiri'ous opinions as to value.

The rule that a sale will be set aside, or'confirmation of it by a specific performance refused, on account that the inadequacy of price was so great as to give the character of hardship, unreasonableness and inequality applies only to private sales, and not to sales at public auction. Benton vs. Shreeve, 4 Ind., 66, 70. Relying upon the foregoing and other authorities Ave deem it to be the established doctrine that equity will not set aside a public sale, not tainted with fraud or unfairness, and upon the sole ground of inadequacy of price. In the language of Lord Eldon in White vs.

Damon, 7 Ves., 35, “ The plaintiff is not affected with anything beyond suspicion ; the sale taking place at an auction, without any fraud, surprise or mistake: the estate being offered at any price he would bid; and without more he became the purchaser'. I am inclined to say, that a sale by auction, there being no fraud, surprise,.&c., cannot be set aside for mere inadequacy of price.” In that case the property worth over £2,000 had been sold for about £1,000. And see 10 Ves. Jr., 474.

Still in cases of inadequacy of price it has been said that the inadequacy may be so unconscionable as to demonstrate some gross imposition or undue influence, and in such cases courts of equity ought to interfere upon the satisfactory ground of fraud. 1 Story’s Eq. Jur., §246. This is not such a case. We have examined all the authorities cited by respondent in his brief and many others, but we find no case where the rule is laid down otherwise than as above stated by Lord Eldon, and followed by the American courts.

The final decree is based upon the interlocutory findings of fact and application of law by the court in 1876. Assuming that finding and judgment to bo coi’rect the final decree of 1882, setting aside the sale, was its natural sequence. Eiuding,’ however, that the interlocutory decree was wrong the final decree must be reversed. The final decree and the interlocutory decree are reversed, and the pause remanded with directions that the petition upon which these proceedings have been had be dismissed with costs.