— citing in support thereof the following cases: McClain Land Investment Co. v. Swafford Bros. Dry Goods Co. et al., 11 Okla. 429, 68 P. 502; Payne et al. v. LongBell Lumber Co. et al., 9 Okla. 683, 60 P. 235; Capitol Bank v. Huntoon (Kan.) 11 P. 369; Keene Five Cent Savings Bank v. Marshe et al. (Kan.) 3 P. 511; Northrop et al. v. Cooper et al., 23 Kan. 432; Hodgins v. Morrow (Ark.) 2 S.W. 104; Central Pacific Railroad Co. v. Creed (Cal.) 11 P. 772; Wheeler Motter Merc. Co. v. Wright et al., 64 Okla. 97, 166 P. 184; Wheeler Motter Merc. Co. v. Miller, 73 Okla. 117, 175 P. 224; Brazell et al. v. Brocking et al., 95 Okla. 38, 217 P. 847; Robinson v. Kennedy, 93 Kan. 514, 144 P. 1002; Anschutz v. Steinwand, 97 Kan. 589, 154 P. 252; Bank v. Murray, 84 Kan. 528, 114 P. 849; Norris v. Evans, 102 Kan. 583, 171 P. 606; Farmers Life Insurance Co. v. Stegink et al. (Kan) 189 P. 965 16 R. C. L. 96 and 16 R. C. L. 98. 2.
So, we submit, when this question was presented to the lower court in the exercise of the large discretion lodged in the court, while it retained control of the litigation in which a sale has been ordered and made, the lower court, for good cause shown and proven without dispute, had complete authority to order a resale of the property in question. Mason v. Martin, 64 Miss. 572, 1 So. 576; Sword v. Ratcliff, 181 Ky. 342, 205 S.W. 323; Fisher v. Hersy, 78 N.Y. 387; Wheeler, etc., Mercantile Co. v. Wright (Okla.), 166 P. 184; Camden v. Mayhew, 129 U.S. 73, 9 S.Ct. 246, 32 L.Ed. 608; Morrison v. Burnette, 154 F. 617, 83 C.C.A. 391, 212 U.S. 291, 29 S.Ct. 394, 53 L.Ed. 517. The issue raised by appellees' motion to set the sale aside was the gross carelessness and misconduct of the assignee hurtful to all the creditors whom he was supposed to protect, and the lower court in deciding this issue against the assignee had the right and power to set the sale aside and enter a resale order.
This court has consistently held that where gross inadequacy of price is shown, a slight showing of fraud or irregularity is sufficient to set aside a judicial sale. State v. Wilson, 124 Okla. 236, 254 P. 968; Wheeler Motter Mercantile Co. v. Wright, 64 Okla. 97, 166 P. 184; State v. Sutton, 127 Okla. 35, 259 P. 551. The judgment of the trial court insofar as the defendants Adams and Reddin and Brown are concerned is against the clear weight of the evidence, and is hereby reversed.
However, a qualification to the rule has been declared that, when there are circumstances showing unfairness in conduct, such a conveyance may be set aside. Miller v. Grey Eagle Oil Gas Co., 164 Okla. 259, 23 P.2d 657, citing Wheeler Motter Merc. Co. v. Wright, 64 Okla. 97, 166 P. 184. Examination of the record discloses the manner in which the defendant's agents dealt with the plaintiff in obtaining this quitclaim deed. Two agents of the defendant called upon the plaintiff, an old and infirm individual, who for years had been incapable of transacting even ordinary business affairs. If not wholly incompetent, he was at least unable to cope with these men with whom he dealt in a business way. Indeed, it is surprising that, if, as the defendant claims, this plaintiff had no interest in this land, they should be so diligent in having two of their employees call upon the old, infirm individual for the purpose of having him execute a quitclaim deed in return for an option which they admitted they never contemplated his being able to exercise.
Plaintiff seeks to reverse this order. We must reverse the action of the trial court upon the following authorities: Wheeler Motter Mercantile Co. v. Wright, 64 Okla. 97, 166 P. 184; McLain Land Investment Co. v. Swofford Bros. Dry Goods Co., 11 Okla. 429, 68 P. 502; Severson v. Bemore, 137 Okla. 50, 278 P. 327; State ex rel. v. Harrower, 167 Okla. 269, 29 P.2d 123; Oklahoma Farm Mortgage Co. v. Hatcher, 106 Okla. 262, 234 P. 203; Miller v. Farmers National Bank, 94 Okla. 101, 221 P. 71; Myers v. Carr, 173 Okla. 335, 47 P.2d 156; Cooper v. State ex rel., 178 Okla. 532, 63 P.2d 698. Defendant relies upon Duncan v. Eck, 65 Okla. 250, 166 P. 121; Sparks v. City National Bank, 21 Okla. 827, 97 P. 575, and Fiolle v. First National Bank of Thomas, 173 Okla. 501, 49 P.2d 145. It is true that in Duncan v. Eck, supra, this court questioned in some respects the rule announced in McLain Land Investment Co. v. Swofford Bros. D. G. Co., supra, in so far as it attempts to deny the discretion of the trial court.
The court rejected this testimony. It is true that this court has committed itself to the doctrine that inadequacy of price alone will not vitiate a sale of property under execution; but that rule is subject to the qualification expressly declared by this court in Frensley v. American National Bank, 129 Okla. 164, 264 P. 188, and Wheeler Motter Merc. Co. v. Wright, 64 Okla. 97, 166 P. 184, in which it was said: " ' "A sale may be set aside for gross inadequacy of price, if accompanied by circumstances showing unfairness in the conduct of the successful bidder, or any circumstances sufficient to raise a presumption of fraud.
"If unaccompanied by circumstances showing unfairness in the conduct of the successful bidder or sufficient to raise a presumption of fraud, a judicial sale will not be set aside for mere inadequacy of price, unless it is so great as to shock the conscience." In the case of Wheeler Motter Merc. Co. v. Wright, 64 Okla. 97, 166 P. 184, city property valued at from $36,000 to $40,000 was sold at a foreclosure sale in all things regular. W., holding a first mortgage for $42,000, offered the highest bid of $16,000.
The court rejected this testimony. It is true that this court has committed itself to the doctrine that inadequacy of price alone will not vitiate a sale of property under execution; but that rule is subject to the qualification expressly declared by this court in Frensley v. American National Bank, 129 Okla. 164, 264 P. 188, and Wheeler-Motter Merc. Co. v. Wright, 64 Okla. 97, 166 P. 184, in which it was said: " 'A sale may be set aside for gross inadequacy of price, if accompanied by circumstances showing unfairness in the conduct of the successful bidder, or any circumstances sufficient to raise a presumption of fraud.'
This, in connection with the bank's refusal to release the land to Frensley upon Frensley's payment of the principal, interest, costs, and attorneys' fees due in the case, we think, very clearly shows an inadequacy of price. All these circumstances, being to the advantage of the bank and to the material detriment of Frensley, when taken together, show an unfairness which in equity raises a clear presumption of fraud and brings the case within the rule announced in Wheeler-Motter Merc. Co. v. Wright, 64 Okla. 97, 166 P. 184, which is as follows: "A sale may be set aside for gross inadequacy of price, if accompanied by circumstances showing unfairness in the conduct of the successful bidder, or any circumstances sufficient to raise a presumption of fraud."
The evidence of defendant is insufficient to overcome the presumption that the appraisers made a fair and impartial appraisement and value on the lands, or to show there was such an inadequacy in the price as to shock the conscience. Under the rules laid down in the decisions of this court in the cases of Wheeler Motter Merc. Co. v. Wright, 64 Okla. 97, 166 P. 185; Alexander v. Amer. Nat. Bank, 54 Okla. 345, 153 P. 130, and Oklahoma Farm Mortgage Co. v. Hatcher, 106 Okla. 262, 234 P. 703, the trial court in the case at bar committed no error in confirming the sheriff's sale, and we find that the judgment is supported by the evidence, and is in accord with law and equity. Defendant in error, plaintiff below, in his brief, moves this court to render judgment on the supersedeas bond in this case for the sum of $5,308.