Burkett v. Clark

64 N.W. 1113, 46 Neb. 466, 1895 Neb. LEXIS 505

• Court: Nebraska Supreme Court
• Decided: November 19, 1895
• Docket: No. 5675
• Status: Published

Opinion

Ragan, C.

In the district court of Saline county Jane E. Clark and others brought suit against Calvin M. Burkett to foreclose an ordinary real estate mortgage. In due time a decree was rendered as prayed, the property sold, and Burkett appeared and resisted the confirmation of the sale, which was, however, confirmed, and he has prosecuted to this court a petition in error to reverse the judgment or decree of confirmation. The order of sale was dated and issued September 1,1891, and the sheriff caused the property to be appraised twice and twice offered it for sale, once in the month of October and once in the month of November of said year. The property, however, was not sold on either of those occasions for want of bidders. The sheriff, then, without returning his order of sale, on the 18th of November advertised the property for sale a third time, and sold it on the 21st of December. This is the sale in controversy. On the 23d of November the sheriff caused this property to be re-appraised. December 10 he filed in the office of the clerk of the district court, from which his execution or order of sale was issued, the re-appraisement made by him of the property, and on the 22d of December he filed in the office of the clerk of the district court the certificates of liens existing against the property made by the clerk of the district court, the county treasurer, and the register of deeds of Saline county, and on the same day he returned the order of sale, reciting that he had appraised the real estate and sold it; but the return omitted all mention of the first appraisement of the real estate, its having been twice advertised for sale, twice offered for sale, and not sold for want of bidders. Burkett insisted before the district court that the sale made should not be confirmed and insists here that the judgment of confirmation should be reversed for the following reasons:

1. That the sheriff advertised the premises for sale before re-appraising them and before filing in the office of the clerk of the district court the re-appraisement made of the premises, together with the certificates furnished him by the clerk of the district court, the register of deeds, and the county treasurer, in pursuance of the statute. The question presented involves the construction of sections 491a, 4916, 491c, and 491d of the Code of Civil Procedure. These sections, so far as material here, are as follows:

“See. 491a. Whenever, hereafter, execution shall be levied on any lands and tenements, the officer levying the same shall call an inquest of two disinterested freeholders, who shall be residents of the county where the lands taken on execution are situated, and administer to them an oath impartially to appraise the interest of the person, or persons, or corporation against whom the execution is levied, in the property so levied upon, and such officer, together with said freeholders, shall appraise said interest at its real value in money, and such appraisement shall be signed by such officer and said freeholders, respectively.

“Sec. 4916. That for the purpose of the appraisement mentioned in the last preceding section, the officer and the freeholders therein named shall deduct from the real value of the lands and tenements levied on, the amount of all liens and incumbrances for taxes or otherwise, prior to the lien of the judgment under which execution is levied, and to be determined as hereinafter provided, and which liens and incumbrances shall be specifically enumerated, and the sum thereafter'remaining shall be the real value of the interest therein of the person, or persons, or corporation against whom or which the execution-is levied.

“Sec. 491e. It shall be the duty of the county clerk, the clerk of the district court, and the county treasurer of the county, and the treasurer of the village, town, or city, wherein such levy is made, for the purpose of ascertaining the amount of the liens and incumbrances upon the lands and tenements so levied upon, on application of the sheriff in writing, holding such execution, to certify to said sheriff, under their respective hands and official seals, the amount and character of all liens existing against the lands and tenements levied on, which are prior to the lien of such levy, as the said liens appear of record in their respective •offices. * * *

“Sec. 49lei. The officer holding such appraisement shall forthwith deposit a copy thereof, including his application to the officers enumerated in section 3 of this act, and their official certificates as in said section provided, in the office of the clerk of the court from which such execution issued, and shall immediately advertise and sell said real estate, lands, and tenements agreeably to the provisions of this act.” * * *

What do these sections require of an officer holding an execution for the sale of real estate? We first remark that these sections of the statute make no distinction between an ordinary execution issued on a judgment at law and an execution or order of sale based on a decree in equity. The terms “execution” and “order of sale” are used interchangeably. The duties of an officer as to appraising real estate which is about to be sold are the same, whether he be selling on execution based on a law judgment or an equity decree. Whether the writ which the officer holds be called an execution or an order of sale, it is but a written command, under the seal of the court, authorizing and directing him to execute its judgment (Kelley v. Vincent, 8 O. St., 415); and in cases like the one at bar, where the officer is commanded to sell real estate to satisfy a decree of foreclosure of a mortgage against it, it would seem to be the better practice to embody in, or attach to, the order of sale a copy of the decree, for the reason that the officer, in making such a sale, must do so in strict conformity to the terms of the decree. (Nebraska Loan & Trust Co. v. Hamer, 40 Neb., 281.)

Recurring to the statutes just quoted, we observe that section 491a declares that whenever an execution shall be levied on any land, the officer levying the same shall, etc. This would seem to imply that the first duty of an officer after receiving au execution, commanding him to sell real estate, would be to levy upon such real estate. What is a levy? To do the acts by which a sheriff sets apart and appropriates, for the purpose of satisfying the command of a writ of execution, a part or the whole of a defendant’s property. (Anderson’s Law Dictionary; Lloyd v. Wykoff, 11 N. J. Law, 218.) Just what acts must be performed by an officer in order that such acts may constitute a levy upon real estate sought to be sold under an execution issued on a judgment at law is a question not presented by this record and not decided, and we are not aware of any statute which defines a levy or declares what an officer holding an execution must do in order that his acts may constitute a levy upon real estate; but since to levy an execution is to set apart and appropriate the property of a certain person for its satisfaction, we are quite clear that an officer holding an execution or order of sale, in and by which he is commanded to sell certain real estate therein described for the satisfaction of such execution, is not obliged, in order to perform the duty of levying upon such real estate, to go upon the same, take possession of any part of said real estate, put up a notice upon said real estate, or make proclamation thereon to the effect that he has levied upon it, since the court by the decree has already by its judgment set apart and appropriated, as it were, the real estate described for the satisfaction of the execution in the officer’s hands. The next step such an officer is required to take by said section 491a is that he shall call an inquest of two disinterested freeholders, who shall be residents of the county where the lands taken on execution are situate, and administer to them an oath impartially to appraise the interest of the person against whom the execution is levied. The next duty of such officer is prescribed by section 491c, and requires that he shall make an application in writing to the county clerk, the clerk of the district court, and the county treasurer of the county where the real estate is situate, requesting said officers to certify to him the amount and character of all liens existing against the real estate levied upon, which are prior to the lien under which the officer desires to sell; such liens to be certified as they appear of record in the office of said officers. It is to be noted that this section now requires such an application to be also addressed to the treasurer of the village, town, or city in which such real estate is situate, but this requirement was not in force in 1891, when this case arose. The next duty required of such an officer is found in section 491a, which commands him and said freeholders to impartially appraise, at its real value in money, the interest of the execution defendant in the real estate about to be sold. This appraisement of the execution defendant’s interest is to be performed in accordance with said section 4916, which requires the sheriff and two freeholders, acting as appraisers, to deduct from the real value of the real estate levied upon the amount of all liens and incumbrances for taxes or otherwise existing against the real estate and which are prior Hens to the lien on which the officer is about to sell. The officer having levied upon the property, and having appraised the interest of the execution defendant therein, section 491d provides that he “shall forthwith deposit a copy of” the appraisement made, together with the written application made by him to the clerk of the district court, county treasurer, and register of deeds, and the certificates furnished by them to him, in the office of the clerk of the court from which the execution which he holds was issued. After this deposit has been made, the statute (Code, sec. 49Id) provides that the officer “shall immediately advertise the real estate.” It will thus be seen that the officer holding an execution for the sale of real estate has not authority to advertise the same for sale until he has levied upon it, caused it to be appraised, and deposited in the office of the clerk from which the execution in his hands was issued a copy of the appraisement made by him and the two freeholders, together with the application in writing for Hens made by him to the clerk of the district court, the county treasurer, and the register of deeds, and the certificates which such officers furnished him in pursuance of said application.

The word “forthwith,” found in section 491d, means immediately; without delay; directly, — regard being had to the nature of the act required to be performed. (Inman v. West Fire Ins. Co., 12 Wend. [N. Y.], 452; Moffat v. Dickson, 3 Colo., 313; Bennett v. Lycoming Comity Mutual Ins. Co., 67 N. Y., 274.) But whatever the technical meaning of “forthwith” in this statute, and whether the facts and circumstances of a particular case would excuse and protect an officer who neglected or delayed the depositing of the appraisement, one thing is beyond all question, viz., that the appraisement must be deposited before the sale is advertised. The statute must be construed as if it read: “ The officer holding such appraisement shall forthwith deposit a copy thereof and thereupon shall immediately advertise,” etc. He shall advertise after he has deposited a copy of the appraisement, not before.

In La Flume v. Jones, 5 Neb., 256, in the third point of the'syllabus it was said that such an appraisement might be deposited any time before sale. In this case Lake, C. J., speaking for the court, said: “The next point relied on is, that the ‘sheriff failed to deposit a copy of the appraisement * * * with the clerk/ In answer to this objection it may be said that the record is silent as to when such copy was in fact deposited. It shows simply that a copy of the appraisement was, in fact, deposited. It will in such case be presumed that the sheriff did his duty, and made the deposit before the publication of the notice of the sale.” There is no doubt but that this is law, but, unfortunately, the learned chief justice continued as follows: “But even if the sheriff had neglected his duty in this respect, it would not be ground for setting the sale aside, if it were in fact deposited before the sale took place,” and cited in support of this last remark Merritt v. Borden, 2 Dis. [O.], 503. In the case cited section 433 of the Code of Civil Procedure of the state of Ohio was construed. That section contained the identical language found in section 49Id above quoted, and the court said: “The question submitted to this court is this: Whether the inquisition taken by the sheriff was filed with the clerk within the time required by section 433 of the Code. It appears the advertisement for the land was published before the inquisition was filed, and we have held in general term that no publication can be legally made until the sheriff has deposited a copy of the valuation in the clerk’s office. The language of the section is: ‘The officer receiving such return shall forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and immediately advertise and sell such real estate agreeably to the provisions of this title.’ We shall adhere to the construction we then gave to the statute, having found no reason since it was announced why it should be changed or in any particular modified.” The decision in La Flume v. Jones, supra, was entirely correct under the facts of the case, but all that was said by the chief justice in that case, to the effect that the failure of the sheriff to deposit the appraisement before advertising the sale would not be ground for setting it aside, was dictum, and the last sentence in the third' point of the syllabus, viz., “It may be deposited any time before sale,” is overruled. In the case at bar the officer advertised the property for sale before he appraised it, did not file the appraisement made until some eleven days before the sale occurred, and, so far as the record shows, he did not file a copy of the application made by him for liens existing against the real estate. The object of this statute in requiring an officer to deposit in the office of the clerk of the court from which the execution issued, before advertising the sale, a copy of the appraisement made, a copy of his application for liens, and the certificates of liens made by the clerk of the district court, register of deeds, and the county treasurer, is to afford the execution defendant and plaintiff an opportunity to know at what value the property has been appraised and to examine and ascertain what liens have been certified as existing against the property, and, if a mistake has been made, to afford them time and opportunity to make application to the court to which the execution is returnable for an order vacating the appraisement before the sale occurs. Generally, this can only be done before the sale, since the sheriff and the freeholders in making the appraisement act judicially, and objections that the value put on the property is too high or too low must be made and filed in the case with a motion to vacate the appraisement before the sale occurs. (Vought v. Foxworthy, 38 Neb., 790.)

2. The second alleged irregularity of the officer relied on here for reversing the decree of confirmation is the selling of the property under the execution of September 1. The contention is that the life of the execution had expired prior to the date of the sale. The contention involves an examination and construction of sections 490, 504, 510, and 495, Code of Civil Procedure. These sections of the statute have all been in force in this state since 1866. Section 490 provides, in substance, that when an officer has levied an execution on goods and chattels and the same have not been sold for want of bidders, the officer must return the writ of execution, and that thereupon the plaintiff in execution may sue out another writ directing the sale of the property already levied upon. Section 504 provides: “If lands and tenements levied on, as aforesaid, are not sold upon one execution, other executions may be issued to sell the land so levied upon.” Section 510 provides: “The sheriff or other officer, to whom any writ of execution shall be directed, shall return such writ to the court to which the same is returnable, within sixty days from the date thereof.” Said section 490 is but a legislative sanction and adoption of the ancient writ known as “venditioni exponas.” Mr. Freeman, in his work on Executions, section 57, thus defines it: “ This writ is, therefore, properly defined as the writ which compels an officer to proceed with the sale of property levied upon under a fieri facias." (Bellingall v. Duncan, 3 Gilm. [Ill.], 477.) At common law, real estate could not be sold on execution, but it may under our statutes be taken for the satisfaction of a judgment at law in the absence of finding personal property out of which to satisfy the writ; and by said section 504 the legislature has made the writ of venditioni exponas applicable to sales of real estate; and the legislature, by said section 510, has limited the life of an execution to sixty days, whether it be an original or alias writ. In view of these provisions of the statute it was the duty of the officer in the case at bar to return the execution issued to him, of date September 1, to the court to which it was made returnable within sixty days from said date, unless some other provision of the statute authorized him to retain the execution and proceed under it after it had expired.

It seems to be the contention that the officer was authorized to cause the property in controversy to be reappraised and offer it for sale under such re-appraisement on the execution of September 1, notwithstanding it had expired, and that authority for this contention is found in section 495. That section is as follows: “In all cases where real estate may hereafter be levied upon, by virtue of any execution or order of sale, and shall have been appraised, and twice advertised and offered for sale, and shall remain unsold for want of bidders, it shall be the duty of the officer to cause a new appraisement of such real estate to be made, and successive executions or orders of sale may issue at any time in vacation, after the return of the officer ‘not sold for want of bidders,’ at the request of the plaintiff or his attorney.” We do not so understand it. The statute is a limitation upon the power of an officer to more than twice advertise and offer for sale real estate under.one appraisement. But for this statute an officer would be compelled to make but one appraisement of real estate which he desired to sell under execution. He might go on indefinitely offering and advertising the property for sale and thus incumbering it with unnecessary costs and expenses. We reach the conclusion, therefore, that when the officer in the case'at bar had caused the real estate to be appraised and had first offered it for sale in October, and it was not sold for want of bidders, that he then should have returned his writ to the court to which it was made returnable, setting forth what he had done under it, as he could not have again advertised the property for thirty days and offered it for sale within the life of the execution. Having returned his writ, the plaintiff in the execution, in either vacation or term time, might, by virtue of the provisions of said sections 495 and 504, have taken out another writ commanding the officer to’again advertise and offer for sale the lands already levied upon and appraised under the former writ. If the officer had once levied upon the lands and once appraised them and had twice offered them for sale and they were not sold for want of bidders, he should have returned his writ of execution stating what he had done; and if the plaintiff in execution sought to, and did, take out another writ, then it became the duty of the officer, under the third writ, to cause the real estate to be re-appraised and again advertised for sale. In other words, it amounts to this, that an officer holding a writ of execution, and having levied the same upon real estate, whether he has offered it for sale or not, and if he has offered it for sale, whether he has sold it or not, must return the execution within sixty days from its date, stating what he has done under it; and for a failure to return the writ in such time he is liable to be amerced under the provisions of section 513 of the Code. But an officer is required to make but one appraisement of real estate until it has been twice advertised and twice offered for sale, whether under the original writ or an alias, and he has no authority to cause real estate to be re-appraised until it has been twice advertised and twice offered for sale under the former appraisement. What is said herein with reference to the return of an execution or order of sale has no application to a case of an officer holding a certified copy of a decree, in and by which decree specific real estate is ordered sold.

The decree of the district court confirming the sale is reversed and the cause remanded with instructions to tax to the complainants in the decree the costs of this proceeding, the costs of the second and third advertisements of the property, and the costs of its second appraisement.

Reversed and remanded.