Bock v. Losekamp

SHAW, J.

This is an appeal by the defendant from a judgment in favor of the plaintiff in an action to set aside an execution sale .and deed of the plaintiff’s real estate.

The facts are very fully set forth in the findings. A judgment in favor of W. J. Cook for costs in the sum of $15.50 was entered in the superior court. One year later an execution issued on said judgment was levied by the sheriff on the property in question, and after due notice the property was offered for sale by the sheriff in the usual manner. The defendant, who was not a party to the action, was the only bidder at the sale and bought the property for the sum of $35.60, that being the amount of the judgment and costs. No redemption was made and in due course the sheriff executed a deed of the property to the defendant. The plaintiff knew that judgment had gone against him on the merits in the action in which a judgment for costs was given, but he had no actual knowledge or information of the judgment for the costs, the issuance of the execution or the sale, until after the sheriff’s deed was given. Three futile demands for payment of the judgment had been made on -Bock’s attorneys in that action, before the execution was issued, but no notice was given to them of the execution or of the sale. The property was encumbered for $220 and was worth two thousand dollars, but the defendant believed that it was worth only five hundred dollars at the time of the sale. The court found .that the consideration paid by the defendant for the property was grossly inadequate. Shortly after the issuance of the sheriff’s deed the plaintiff learned for the first time of the execution and sale, whereupon he promptly tendered to the defendant the amount paid by the defendant for the property, with interest, and brought this action to set aside the sale and deed.

The court further found that the judgment creditor, Cook, knew where the plaintiff resided and did not notify him of the sale, and that both Cook and the sheriff knew that the plaintiff did not see the published notice of the sale. This notice appeared in a newspaper published in the city of

[676]

Los Angeles, but in a part thereof about thirty miles distant from the plaintiff’s residence and from the property.