Opinion
Dec. 24, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1368
Quiat, Bucholtz & Bull, P.C., Alan H. Bucholtz, Denver, for plaintiff-appellee.
Robert R. Kayne, Boulder, for defendant-appellant.
STERNBERG, Judge.
A judgment was entered in the Boulder County Court on April 12, 1968, in favor of defendant Roper, and against plaintiff, Mrs. Sprecker, in the amount of $79,13. Being unable to collect this judgment, Roper had the defendant Nelson, Sheriff of Boulder County, levy on three lots owned by Mrs. Sprecker. At the time of sale, January 20, 1969, Roper stood by while each of the three parcels was offered separately by the sheriff, and then when the parcels were offered as a unit, made his bid of $169.62, which was the amount of his judgment plus interest and costs. The minimum equity value of the property was approximately 200 times the amount of that bid. The sheriff's deed was issued on April 9, 1969. Roper collected the rents on the property and also used part of it for warehouse purposes. Mrs. Sprecker filed this suit in the district court on March 20, 1970, seeking to set aside the sheriff's sale, and for damages against both defendants. Following trial, the court entered a judgment ordering Roper to convey his interest in the lots to Mrs. Sprecker and to account for rents collected during his period of control over the property, and dismissed the damage claim. Roper appeals, and we affirm.
' [1][2][3] Ordinarily, inadequacy of the price paid is not sufficient cause, Standing alone, for setting aside of a judicial sale . . ..'; rather, the court must consider the totality of the circumstances surrounding the transaction. Chew v. Acacia Mutual Life Insurance Co., 165 Colo. 43, 437 P.2d 339. Based upon appraisal testimony in this case, the trial court found that the three parcels had an aggregate value of between $53,000 and $59,000; that their minimum equity value was between $33,187.52 and $40,987.52; that despite the fact the parcels were spearate properties, all three of them were sold; that sale of one of the parcels would have satisfied the judgment many times over; that sale of the three lots by the sheriff, when sale of one would have sufficed, violated C.R.S.1963, 77--1--10; that the judgment could have been satisfied by garnishing rents, the existence of which were known to Roper; and that Mrs. Sprecker had been confused about the proceedings in the county court and actually thought an appeal was in process. These findings of the trier of fact, based as they are upon evidence in the record, cannot be set aside on appeal. See Harmon v. Waugh, 160 Colo. 88, 414 P.2d 119. This was the 'totality of circumstances' which so shocked the conscience of the court that it set aside the sale of January 20, 1969, and ordered a reconveyance of the property to the plaintiff. In light of the gross disparity between the bid price and the value of the property, these findings are adequate to meet that test specified in Chew, supra. See Handy v. Rogers, 143 Colo. 1, 351 P.2d 819; Gelfert v. National City Bank, 313 U.S. 221, 61 S.Ct. 898, 85 L.Ed. 1299; Smith v. Juhan, 311 F.2d 670 (10th Cir.); J. J. Sugarman Co. v. Davis, 203 F.2d 931 (10th Cir.).
In Fulton Investment Co. v. Smith, 27 Colo.App. 279, 149 P. 444, the court stated:
'(I)t would be unconscionable, a reproach to the courts in the administration of justice, to permit the sacrifice of 800 acres of land, which the plaintiff herself alleges to be worth $50,000, to satisfy an execution for $3,000, when, so far as the record shows, the capital stock could be as well and readily subjected to execution as could the real estate, and in sufficient quantities only to satisfy the judgment, with costs.'
A court should not be reluctant to set aside a sheriff's sale where, as here, the judgment could have been satisfied by less oppressive, and therefore, more just, appropriate, and simple devices.
Roper requested that the trial court, under its equity powers, award him attorney's fees for his lengthy efforts to collect the judgment. The court refused this relief, stating that, '(T)he actions of Roper in this case are simply unconscionable. It would be a gross abuse of this court's discretion to give him the equitable relief requested.' We agree.
Judgment affirmed.
COYTE and RULAND, JJ., concur.