Burton v. Kipp

76 P. 563, 30 Mont. 275, 1904 Mont. LEXIS 74

• Court: Montana Supreme Court
• Decided: April 22, 1904
• Docket: No. 1,834
• Status: Published

Opinion

MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the court.

If the complaint states a cause of action, the district court was right in ordering a new trial; otherwise the order must, he reversed. The question for decision therefore is, are the allegations of the complaint sufficient to make out a prima facie case that- the sale was avoided by reason of the inadequacy of the price, or for want of notice by the sheriff, or because the property was sold in gross, or by reason of a violation by the plaintiff of the agreement for delay >.

1. Before noticing these features of the case, we remark that the allegation of the complaint touching the entry of judgment is pregnant with the admission that judgment was in fact entered before the writ was issued, for the allegation is tliat the judgment was not properly entered. Wherein the entry was defective, if such was the case, is not. pointed out. There is presented no statement in this allegation upon which an issue of fact may be made. It is merely a bald conclusion of law, which is wholly insufficient.

Touching the failure of the clerk to affix the seal to the writ, we refer to the decision in the case of Kipp v. Burton, 29 Mont. 96, 74 Pac. 85, wherein it was held that the omission of this duty on the part of the clerk rendered the sale voidable, not void, and that in any event the defect was cured and the sale validated by the Act of March 2, 189Í) (Session Lavs 1899, p. 145). Furthermore, the complaint does not refer to this feature of the sale as a ground of relief in this action. Again, the statute (Code of Civil Procedure, Sec. 1210) declares that a party in whose favor judgment is given may at any time within six years after the entry thereof have a writ of execution issued for its enforcement. The making up of the judgment roll required by Section 1196 is not made a prerequisite to the issuance of execution. The roli must be made after judgment has been entered, not before. If the writ may be issued at any time after entry of judgment, it may, of course, be enforced, whether the duty enjoined upon the clerk by Section 1196 has or lias not been performed. (Sharp v. Lumley, 34 Cal. 611.)

2. As to the inadequacy of consideration: The requirement of the statute is that all sales of property under execution shall be made at auction to the highest bidder. (Code of Civil Procedure, Sec. 1227.) It is not alleged that the sale in question was attended- by any irregularity on the part of the sheriff or the plaintiff in the writ, or that any mistake, surprise, accident, misconduct or fraud intervened, by which the .inadequacy of price was brought about. There is nothing alleged from which even a remote inference can be drawn that the sale was not properly conducted, in the utmost- good faith, or that, the sheriff or the plaintiff in the writ did anything to prevent competition in the bidding. So' far as the allegations show to the contrary, the small price realized may have been the result of lack of bidders, or incumbrances upon the property, or a variety of other causes over which the sheriff and the plaintiff had no control, or with which they had no connection. The plaintiff had the right to collect his judgment. He was under no obligation to bid more than he deemed proper — certainly not more than the amount, of his judgment. He was at liberty to act as he chose in the matter; leaving it to others to bid above him, or to-the defendant to redeem witliin the statutory time for redemption. This provision for redemption was ample protection to the plaintiff against the sacrifice of her property, and it is not alleged that she did not have the knowledge and opportunity to avail herself of this protection before the time for redemption had expired. Mere inadequacy of price, not attended by circumstances of fraud, misconduct, accident, mistake or surprise tending to influence the result, is not sufficient to- invalidate such a sale. Otherwise the mere lack of competitive bids, or the intervening of any like circumstance whereby the price realized should be deemed inadequate, would be sufficient to render questionable the title obtained by sale under execution. (First Nat’l Bank of Deadwood v. Black Hills Fair Ass’n, 2 S. Dak. 145, 48 N. W. 852; Hollister v. Vanderlin, 165 Pa. St. 248, 30 Atl. 1002, 44 Am. St. Rep. 657; House et al. v. Robertson, (Tex. Civ. App.) 34 S. W. 640; Carson v. Ambrose, 183 Pa. St. 88, 38 Atl. 508; Felton v. Felton, 175 Pa. St. 44, 34 Atl. 312; Fullerton v. Seiper, (N. J. Ch.) 34 Atl. 680; Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475; Ingram v. Belk, 2 Strobhart’s Law, 207, 47 Am. Dec. 591; Central Pac. R. R. Co. v. Creed, 70 Cal. 497, 11 Pac. 772.) This rule obtains generally with reference, to judicial sales, as well as to sales under execution, and is applied more rigorously in those states in which the right of redemption exists. A gross inadequacy of price is competent, so far as it goes, to establish fraud; but it is not in itself, in the absence of other circumstances tending to show fraudulent, behavior on the part of the sheriff or the plaintiff in the writ, enough to warrant the presumption that the sale was fraudulent.

3. The statute provides that notice shall be given by posting written notices, particularly describing the property, for twenty days) in three public places in the township- or city where it is situated, and also where the sale is to take place, which may be at the courthouse or on the premises, and by publication of a copy thereof once a. week for the same period in some newspaper published in the county. (Code of Civil Procedure, S-ec. 1225.) Section 1226 declares that “an officer selling without the notice prescribed by the last section forfeits five hundred dollars ro the aggrieved party, in addition to his actual damages.” It will be observed that the allegation of want of notice in the complaint is also pregnant with the admission that some sort of notice was given; but, assuming the allegation to be sufficient to present an issue on this point, was the sale therefore void? Counsel for respondent makes the contention that the provisions of Section 1225, supra, are mandatory, and must be strictly pursued. This is the rule in some of the states, particularly where sales not made in strict conformity with the statute are declared by the statute itself to be void. This rule prevails in Tennessee. (Lafferty v. Conn, 3 Sneed, 221; Lloyd v. Anglin's Lessee, 7 Yerg. 428.) But in the absence of such a provision in the statute itself, the preponderance of authority is in favor of the view that the requirement as h> notice is directory only, and that the failure to observe it does not avoid the sale as against a purchaser who is himself free from fault. (2 Freeman on Executions, 2d Ed., Sec. 286; Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475; Blood v. Light, 38 Cal. 649, 99 Am. Dec. 441; Frink v. Roe, 70 Cal. 296, 11 Pac. 820; Webber v. Cox, 6 T. B. Mon. 110, 17 Am. Dec. 127; Hayden v. Dunlap, 3 Bibb. 216; Ware v. Bradford, 2 Ala. (N. S.) 676, 36 Am. Dec. 427; Brooks v. Rooney, 11 Ga. 423, 56 Am. Dec. 436; Maddox v. Sullivan, 2 Rich. Eq. (S. C.) 4, 44 Am. Dec. 234, and cases cited in note.)

, Tor another reason the sale is not void for want, of notice. If we construe together the sections of the statute cited supra, we must conclude that it- was the intention of the legislature to provide by Section 1226 an adequate remedy for a default on the part of the sheriff in the matter of notice. The remedy provided is not that the sale shall be void, but that the sheriff shall forfeit the sum of $500 to the aggrieved party, and, besides, pay such damages as may be actually suffered by him. This remedy must be deemed exclusive, upon the theory that a court of equity will not interfere when the remedy at law is adequate. (Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475.)

4. It is argued that the lot consists of two parcels — the north half and the south half — and that the sale of the whole as .one parcel was such an irregularity that it should be held to vitiate it. Section 1227 of the Code of Civil Procedure provides that, “when the sale is of real property consisting of several known lots or parcels, they must be sold separately.” It also provides that in such case, if the debtor is present and directs the order in which the parcels shall be sold, the sheriff shall follow such direction. Adopting, for the purpose of this case, the theory.of the plaintiff that, these provisions are mandatory, and that a sale made in violation of them is void, the allegations of the complaint are not sufficient to bring the case within the purview of the statute. The property must, under its terms, consist not only of lots or parcels, but of known lots or parcels. It might be in a. particular case that the situation and description of the lands sold would be sufficient to indicate that they were known lots, or parcels, or that they were of an area so great in extent that it would be the manifest duty of the sheriff to sell them in parcels; but this inference would not be indulged with reference to a single lot of small area in a city, such as is the case here. The law presumes that official duty has been performed (Code1 of Civil Procedure, Sec. 3266), and this presumption must be indulged until rebutted by sufficient allegation and proof. So far as the pleadings show, the property may actually have been offered in different lots, and sold in gross only after it was found that there were no bidders for the different parcels. In such case the sale may lawfully be made in gross, for the creditor is not to be foreclosed of his effort to collect his debt by the mere want of bidders for the different parcels. Here, again, the provision for redemption affords protection to the debtor; and, in the absence of a specific allegation of circumstances tending to show that plaintiff was prevented from availing herself of this protection, she should not be heard to complain.

5. The last point made is that the sale is void because made in violation of an agreement on the part of the defendant with the agent of the plaintiff that the judgment against the plaintiff should not be enforced until the settlement of the claim of Band against the firm of Kipp Bros, had been made. It is sufficient to say of this agreement that it was for no definite time, and, so far as the complaint shows, was based upon no consideration. By it Rand did not bind himself to bring suit against Kipp Bros., or to have a settlement of his claim with them within any definite time; nor did the defendant in this case undertake to extend the delay to any definite time upon any consideration whatever. The agreement, at most, amounts merely to a voluntary promise on the part of Kipp, without consideration, to extend the time for the payment of the judgment. This was not binding upon him. Even if it were, the plaintiff does not allege that she ivas so deceived or misled by the agreement that she for that reason failed to> pay the judgment against her or redeem the property after the sale.

The most that can be said of any of the defects in the proceedings of the sheriff resulting in his deed to- the defendant is that they rendered the sale voidable only. Should this be conceded, however, the plaintiff is not entitled to relief, for the reason that the Act of the legislature cited supra cured all of these defects, and rendered the defendant’s title good. (Kipp v. Burton, supra.)

The evidence was properly excluded. It follows that the order must be reversed.

Reversed.