To a petition for rehearing filed by counsel for appellees, delivered the following response of the court:
It was not intended by section 521 of the Code (Myers’ Code, 582) to make the power of the court to vacate, after the expiration of the term, an order confirming a judicial sale dependent upon the existence of a valid defense to the cause of action or claim sued on. If it had been, no sale of real property under a valid judgment could, after confirmation, be set aside for any cause, however unjust, unfair, or even fraudulent it might be.
The question as to the validity of the sale is distinct from that in regard to the judgment under which it is *696made ; for though the judgment be reversed or vacated, it does not necessarily follow that the sale, if already confirmed, will be set aside; and, on the other hand, there may exist grounds for setting aside a sale which do not affect the judgment.
If, then, Isaac Smith, or any one for him, could, being present, have presented a valid defense to the motion to confirm the report of sale, his heirs-at-law may, for the cause mentioned in subsection 7, section 518, now make the same defense, without calling in question the judgment for the sale.
His defense would have been that the two lots were sold at an enormous sacrifice, for much less than the value of either of them, and that by reason of his unsoundness of mind he was ignorant of the pendency of the action against him, of the judgment, and of the sale. And if such defense had been made, the court would undoubtedly have set aside the sale.
But it is argued that where time is allowed to redeem, inadequacy of price is no ground of exception to a judicial sale.
Even if that rule were correct, it could not be applied in every case without working injustice. For there may be a case where the defendant is unable to redeem, and, consequently, interested in having the property sold for a fair price, or a case like this, where two lots of land are improperly sold, when either of them may be worth, and, at a fair sale, would bring, more than enough to satisfy the judgment, leaving the other unincumbered.
Though appellants, in their petition, did not in terms, pray to have the order confirming the sale vacated, *697they did ask that the judgment in the original action, and all the proceedings under it, be declared void; that the deed to appellees be canceled, and the title and possession of the property be restored to them; and they stated all the facts necessary' to constitute the cause mentioned in subsection 7 for setting aside the sale.
The plaintiffs in the original action were not made parties to this. Consequently, the only issue made is with appellees, and the only relief sought or that can be granted is against them, which involves vacating the order confirming the sale, and canceling the deed, and restoration of the title upon the conditions mentioned in the original opinion.
Petition overruled.