GERALD D. MCALICE, APPELLANT,
v.
MARION ANDERSEN, TRUSTEE AND JUDITH KIRSCH SHEFFIELD, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RALPH KIRSCH, TRUSTEE, DECEASED, APPELLEES

Fla. 3d DCA | 1981-09-08
Nos. 80-1888, 80-1889
Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
403 So. 2d 563 Florida District Court of Appeal, Third District (1981) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

McAlice purchased property at a sheriff's sale for $600 to enforce a judgment lien against the original owner, despite the property being appraised at $92,000. The appellees sought to set aside the sale and sheriff's deed based on inadequate bid price and alleged irregularities. The court reversed, holding that inadequate price alone is insufficient to vacate a sheriff's sale without showing mistake, fraud, or other misconduct.


Holding

Under Florida law, inadequate purchase price alone is insufficient to set aside a sheriff's sale; the party seeking to vacate must also demonstrate that the low price was coupled with or resulted from mistake, fraud, accident, surprise, misconduct, or irregularity. The appellees failed to point to any actual irregularity that prejudiced interested parties or caused the inadequate bid, therefore the sale should not have been set aside.


Headnotes

[1] A sheriff's sale may be set aside for an inadequate purchase price only when the low price is coupled with mistake, fraud, accident, surprise, misconduct, or irregularity…

[2] A sheriff acts in a ministerial capacity during an execution sale and makes no representations or warranties as to title.

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Key Quotes

“Under Florida law an inadequate purchase price alone is an insufficient basis for setting aside a sheriff's sale; a party must also show that the low price is coupled with or resulted from mistake, fraud, accident, surprise, misconduct or irregularity.”

States the controlling legal standard that inadequate price alone cannot vacate a sheriff's sale

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Facts & Procedural History

Sapp Brothers Construction Company owned property encumbered by a first mortgage of approximately $100,000 and a second mortgage of $20,000 held by ap…

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Opinion of the Court
FERGUSON, Judge.

FERGUSON, Judge.

The dispositive issue in this appeal is whether the trial court correctly set aside an execution sale and sheriff’s deed on the grounds that the bid price was inadequate and connected with irregularities.

The property in question was sold at a sheriff’s sale to enforce a judgment lien against Sapp Brothers Construction Company, the original owners of the property. McAlice purchased the property with a high bid of $600.00. The property was appraised at $92,000.00 as of the date of the sheriff’s sale and was one of three parcels encumbered by a single first mortgage of approximately $100,000.00. At the time of the sheriff’s sale, appellees, the Andersen group, had initiated mortgage foreclosure proceedings against the property pursuant to a recorded $20,000.00 second mortgage which appellees had given Sapp subsequent to the judgment lien but prior to the execution of that judgment lien. After purchasing the property, McAlice filed a quiet title action against appellees seeking an adjudication that appellees’ $20,000.00 mortgage was inferior and junior to the judgment lien upon which his purchase was based. Appel-lees then joined McAlice as a defendant in the pending foreclosure action.

The trial court entered summary judgment against appellant McAlice in the foreclosure action commenced by appellees Andersen, Sheffield and Kirsch, and against appellant in the corresponding quiet title action whereby McAlice sought to establish title to the property. Both judgments are appealed and have been consolidated by this court.

Under Florida law an inadequate purchase price alone is an insufficient basis for setting aside a sheriff’s sale; a party must also show that the low price is coupled with or resulted from mistake, fraud, accident, surprise, misconduct or irregularity. Arlt v. Buchanan, 190 So. 2d 575 (Fla.1966); Moore v. Dade Glass and Mirror Company, Inc., 357 So .2d 221 (Fla.3d DCA 1978), cert. denied, 361 So. 2d 834 (Fla.1978); Van Delinder v. Albion Realty & Mortgage, Inc., 287 So. 2d 352 (Fla.2d DCA 1973); Edward A. Lashins, Inc. v. Baumann, 201 So. 2d 495 (Fla.2d DCA 1967), cert. denied, 210 So. 2d 221 (Fla.1968).

Although appellees alleged several irregularities, they fail to point to any mistake or irregularity in the sale which actually prejudiced appellees or any other interested party or caused the inadequate bid which would permit vacating the sheriff’s deed as a matter of law. See Taylor v. Bailey, 323 Pa. 278, 185 A. 699 (1936). Compare Moore v. Dade Glass and Mirror Company, supra (fact that notice of sale failed to state whether sale was to be inside or outside courthouse did not require vacation of sale based on inadequate bid) with Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So. 2d 679 (Fla.1974) (sale vacated where serious question of good faith and evidence that party would have bid substantially higher).

We reject appellees’ argument that one such fatal irregularity or mistake was the Sher iff’s announcement at the time of the sale that he was selling all right, title and interest of the judgment debtor Sapp as of the date of the sale rather than such interest of the judgment debtor as of the time the judgment became a lien upon the real property. In conducting an execution sale, the sheriff acts in a ministerial capacity, see, e. g., Camp v. Moseley, 2 Fla. 171 (1848), and makes no representations or warranties as to title. He is not charged with any affirmative duty of ascertaining the state of the title for the purpose of disclosing it to bidders. All that could pass by the sale was appellees’ interest in the property, whatever that might be. Taylor v. Bailey, supra.

Reversed with directions to enter judgment in favor of appellant.


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Citator

Cited By

  • Slachter v. Abundio Inv. Co., 566 So. 2d 348 (Fla. 3d DCA 1990)
  • White v. Loschiavo, 597 So. 2d 373 (Fla. 4th DCA 1992)
    …lief from a judicial sale must show something more than mere inadequacy of price, e.g. surprise, accident, mistake or irregularity in the conduct of the sale. Bit-O-Sweeden, Inc. v. Kittredge, 566 So. 2d 364 (Fla. 5th DCA 1990); McAlice v. Andersen, 403 So. 2d 563 (Fla. 3d DCA 1981). The circumstances surrounding the third sale were highly irregular. The record supports White’s contention that the order granting the third sale and declaring the previous bids false and fraudulent was the result of ex parte co…

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