Bock

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…

I am unable to concur in the conclusion reached in the Department opinion. It seems to me that in connection with an admitted inadequacy of consideration so gross as “to shock the conscience” there are circumstances sufficient to fairly warrant the conclusion of the trial court that the case is governed by the equitable doctrine enunciated in such cases as Odell v. Cox, 151 Cal. 70 , [ 90 Pac. 194 ], The correctness of the views expressed in that case has never been questioned. In fact, they were expressly affirmed and applied in Winbigler v. Sherman, 175 Cal. 270, [ 165 Pac. 943 ], and the doctrine of the two cases was recognized and approved in Rauer v. Hertweck, 175 Cal. 278 , [ 165 Pac. 946 ], the opinion in the last-named case being subscribed by the very justices who concurred in Winbigler v. Sherman, supra.