Courts shall have full power over their officers making execution sales. Whenever the court is satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the court shall set aside the sale.
(Civil Code 1895, § 5427; Civil Code 1910, § 6032; Code 1933, § 39-1316.)
Law reviews.- For note discussing legal and equitable relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
This section gives to court full power over the court's officers making judicial sale. The same authority further authorizes the court to set aside such sale whenever the sale is infected with fraud, irregularity, or error. Parker v. Glenn, 72 Ga. 637 (1884).
Courts have full power over their officers and their acts in making execution sales so far as to correct wrongs and abuses, errors, irregularities, mistakes, omissions, and frauds. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416, 246 S.E.2d 183 (1978).
Court upon whose judgment execution issues has full power to set aside sale whenever the ends of justice and fair dealing require it, and to order a resale, or award execution anew at the court's discretion. Johnson v. Dooly, 72 Ga. 297 (1884); Suttles v. Sewell, 109 Ga. 707, 35 S.E. 224 (1900).
Whenever courts are satisfied that a sale made under process is infected with fraud, irregularity, or error, to the injury of either party, or that the officer selling is guilty of any wrong, irregularity, or breach of duty, to the injury of the parties in interest, or either or any of them, the sale will be set aside; and so also when there has been a willful disregard of the law as to the manner of selling. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416, 246 S.E.2d 183 (1978).
Any contemplated fraud, irregularity, or error on the officer's part may, upon proper proceeding, be prevented. Fears v. State, 102 Ga. 274, 29 S.E. 463 (1897); Suttles v. Sewell, 109 Ga. 707, 35 S.E. 224 (1900); Smith v. Georgia Loan & Trust Co., 114 Ga. 189, 39 S.E. 846 (1901); Stark v. Cummings, 119 Ga. 35, 45 S.E. 722 (1903); Ruis v. Branch, 138 Ga. 150, 74 S.E. 1081 (1912).
Inadequacy of price alone is not sufficient to set aside sale, unless coupled with other circumstances, such as fraud, mistake, misapprehension, surprise, or collusion. McInvale v. Walter E. Heller & Co., 116 Ga. App. 71, 156 S.E.2d 371 (1967).
Mere inadequacy of price is not of itself sufficient ground for setting aside a sale, but when coupled with other circumstances showing fraud, accident, or mistake tending to bring about such inadequacy a sufficient reason is presented. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972); Small Equip. Co. v. Walker, 126 Ga. App. 827, 192 S.E.2d 167 (1972).
Inadequacy of the price alone is not enough to cause the sale to be set aside. There must also be a showing of "fraud, irregularity, or error to the injury of either party." Wilson v. Citizens Bank, 143 Ga. App. 402, 238 S.E.2d 754 (1977).
Sale of subdividable land for grossly inadequate amount without officer's offering to sell land in parcels is void. Pierce v. Gaskins, 168 Ga. App. 446, 309 S.E.2d 658 (1983).
Allegations that sheriff misled plaintiff's attorneys as to time of foreclosure sale may be insufficient grounds to set aside the sale, unless it appears that the purchaser knew of or had some hand in the misleading. American Sec. Inv. Co. v. Poppell, 114 Ga. App. 268, 150 S.E.2d 697 (1966).
Sale at improper place voidable.
- Sale at a place other than at the court house, and other than that designated in the judicial order and announced in the notice and advertisements, is such an irregularity as renders the sale voidable at the option of one who was thereby deprived of a bid. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972).
Defect in notice of sale not preserved for review.
- As a purchaser of property at a tax sale failed to raise a claim of error in a summary judgment motion regarding an erroneously listed record owner of property in the notice of tax sale, such claim of error was waived on appeal; further, any such defect in the notice warranted an award of damages under O.C.G.A. § 9-13-172, but did not warrant setting aside the deed as requested by the purchaser. Hash Props., LLC v. Conway, 298 Ga. App. 241, 679 S.E.2d 799 (2009).
Second unauthorized tax sale did not affect fee simple title of buyer at first tax sale.
- Although a county did not have the recognized statutory option of conducting a second tax sale in order to satisfy the remainder of the tax deficiency owed, and while the assignee who took the property as a result of the second tax sale might be entitled to a refund of the purchase price, the special master's recommendation to issue a decree of fee simple title in the underlying property to the buyer at the first tax sale was upheld on appeal. DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903, 655 S.E.2d 586 (2008).
Rescission of sale due to lack of actual notice to interested parties.
- In a judicial foreclosure sale held after a tax sale and redemption, the super lien holder's failure to give actual notice of the sale to the record owner and two lienholders justified the trial court's setting aside the sale under O.C.G.A. § 9-13-172; the disappointed buyer from that sale had no interest in the property and lacked standing to ask the court to confirm or set aside a second sale. Ga. Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356, 825 S.E.2d 833 (2019).
Cited in Davis & Brandon v. Elliott, 163 Ga. 169, 135 S.E. 731 (1926); Wiley v. Martin, 163 Ga. 381, 136 S.E. 151 (1926); Bibb County v. Elkan, 184 Ga. 520, 192 S.E. 7 (1937); Caldwell v. Northwest Atlanta Bank, 194 Ga. 370, 21 S.E.2d 619 (1942); Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412, 249 S.E.2d 133 (1978).
RESEARCH REFERENCES
Am. Jur. 2d.
- 47 Am. Jur. 2d, Judicial Sales, § 218 et seq.
C.J.S.- 50A C.J.S., Judicial Sales, § 113 et seq.
ALR.
- Grounds of collateral attack on judicial and execution sales, 1 A.L.R. 1431.
Effect of reversal or vacation of judgment on execution sale, 29 A.L.R. 1071.
Remedy for fraud preventing redemption from judicial sale, 44 A.L.R. 690.
Rights and remedies of purchaser at judicial or execution sale, where sale is void or is set aside because proceedings are imperfect or irregular, or where description of property is defective, 142 A.L.R. 310.
Rights and remedies of one purchasing at judicial or execution sale where there was misrepresentation or mistake as to acreage or location of boundaries of tract sold, 69 A.L.R.2d 254.
Right of purchaser at execution sale, upon failure of title, to reimbursement or restitution from judgment creditor, 33 A.L.R.4th 1206.