Ford v. California Pacific Investment Co. — 180 Cal. 616

Majority

p. 616

[L. A. No. 4890.

Department One.

June 19, 1919.]

MELISSA H. L. FORD, Respondent, v. CALIFORNIA PACIFIC INVESTMENT COMPANY (a Corporation), et al., Defendants; H. B. LEARNED, Appellant.

Headnote

[1] Execution—Fraudulent Sale—Purchaser not a Party to Action—Relief—Motion.—Where sufficient grounds exist for vacating an execution sale, it may be vacated by motion to the court which has decreed the sale, as well as by a separate action brought for that purpose, notwithstanding the purchaser at the sale was not a party to the action.

APPEAL from an order of the Superior Court of Los Angeles County vacating an execution sale. Frederick W. Houser, Judge. Affirmed.

The facts are stated in the opinion of the court.

John 0. Bender for Appellant.

This is an appeal from an order vacating an execution sale on the grounds that the price was wholly disproportionate to the real value of the property and that the sale was unfair and fraudulent. The appellant is the purchaser at the sale. He was not a party to the action and his position is that where a purchaser at a judicial sale is not a party to the action, the sale cannot be vacated on motion, but only in a separate action brought for that purpose. [1] This is the sole question in the case, and it is answered by Thompson v. Superior Court, 119 Cal. 538 , 542, [ 51 Pac. 863 , 864], where an order vacating a judicial sale was under attack and the court said: “It is contended that this order is void for want of jurisdiction; that the title to the property having vested in the petitioner by the sale, he could not be divested of that title in such a proceeding. The rule, however, is quite otherwise. While the party seeking relief may resort to his bill in equity, he may—and, indeed, it is often the preferable practice—apply by motion to the court which has decreed the sale, and in applying to such court he may base his application upon any equitable principle of relief which would give jurisdiction to a court of equitj'- in any other case of sale— fraud, mistake, accident, or other ground of purely equitable

p. 617

cognizance. And particularly will the court entertain such applications where the deception has been practiced or the mistake induced by the act of the purchaser. In all such cases due regard will be had to the intervening rights of third persons, but no such rights have here arisen. Amongst numerous authorities supporting this proposition may be instanced (citing a number of authorities).” (See, also, Georgeson v. Consumer’s Lumber Co., 3 Cal. Unrep. 584 , [ 31 Pac. 257 ].)

If Bryan v. Berry, 8 Cal. 135 , the only decision by this court to which appellant’s counsel has referred us, is to be taken as holding to the contrary, it must be deemed to have been overruled on this point.

Order affirmed.

Shaw, J., and Lawlor, J., concurred.

Cases cited

Thompson v. Superior Court of San Francisco 119 Cal. 538 Cal. 1898-01-06 at 542 p. 616
Georgeson v. Consumers' Lumber Co. 3 Cal. Unrep. 584 Cal. 1892-11-01 p. 617