Opinion by
Delaney J.This suit was brought not exactly to rescind a sale, but rather to prevent its consummation.
A sheriff’s sale is not complete until the purchase money is paid. Up to that time the bidder may recede from his bid, being, however, liable to a penalty, and the sheriff may advertise and sell the property, (Pasch. 3786, R. S. 2321).
The defendant in this ease, then in pressing his claims to the property, occupies to a limited extent at least, the position of a party seeking the specific performance of a contract. The rule is almost universally accepted that inadequacy of price alone is not sufficient to justify the annulment of an executive sale.
“But” says Mr. Freeman “occasionally cases of great hardships arise and result in the questioning of the general rule; * * * or, if the rule is not questioned, the court will, at least, look anxiously for some reason whereby, without disputing the general rule, it may justify itself in declaring that the rule is not applicable to the case before it.” Freeman on Ex. 309. Accordingly in Allen vs. Stephens 18 T.672,the Oh.Justice says : “In cases where the disproportion is so enormous as this, but slight additional circumstances will justify the inference that the sale is fraudulent.” In that case property worth $600 had been sold for $21.50.
*399So in Chamblis vs. Tarbox, 27 T. 145, Justice Moore adopts expressions which the courts have used for nearly a century as follows : “If the bargain is such as no man in his senses would make, and that no honest and fair man should accept, and there are circumstances attending the sale, which may have operated to prevent the property from bringing a higher price, although at the time they may in fact have been unknown to the purchaser, the sale will be regarded by the court as, in its legal sense, fraudulent.”
In both these cases the sales were collaterally attacked.
In Ballard vs. Anderson 18 T., when a large amount of property was sold in bulk for a trifling sum, and the purchaser brought suit to enforce the contract, the sale was held void upon general demurrer.
In Taul vs. Wright 45 T. 395, Justice Moore says : “When there is enormous inadequacy of price, at a sheriff’s sale, if there be but slight irregularities or other circumstances attending it, calculated to prevent the property from bringing something like its reasonable value, it is regarded as unconscientious in the purchaser to hold the property so purchased and his deed will be cancelled.”
This was a direct proceeding to set aside the sale. The case of Johnson vs. Crawl 55 T. 571, bears a striking resemblance to the present, and seems decisive of it, with the difference that the property was there sold for half its value and here it brought only about one-fortieth part.
Iii that case Ch. Justice Gould uses'this language : “Although both the sheriff and the purchaser were guiltless of any intentional wiong, if the sale was had under circumstances which made it unfair to the judgment creditor, and which were also unfavorable to a fair price, the purchaser at such sale becomes so far participator in the wrongful or improper manner in which it was made, that he is in no condition to object to the extension of relief to one otherwise entitled to it.”
The court below seems to have imputed negligence to the plaintiff, but it seems to us that his mistake can be attributed to nothing more serious than inadvertance, and hardly deserves to be visited with a penalty so heavy. Thus in the case of Ontario Bank vs. Lansing 2 Wend. 260, when the plaintiff in an execution inadvertently made a serious mistake in the amount of his bid, the court upon his application, set aside the sale. See also the authorities in Freeman Ex.308.
But even if the plaintiff be not entirely blameless, certainly neg*400ligence cannot be imputed to the defendants, Gurdy and wife, who are equally interested that the property should bring a fair price, and who joined in the prayer for relief.
In the interest of the due administration of justice, we think that the judgment should be reversed and that judgment should be rendered by the Supreme Court as should have been rendered below, that is, judgment for the appellants.
Report of the commissioners of appeals examined, their opinion . adopted and the judgment reversed and rendered in favor of appellants.
WILLIE, C. J. Judge Watts did not sit in this case.