Heyman v. Babcock

30 Cal. 367

• Court: California Supreme Court
• Decided: October 15, 1866
• Status: Published

Opinions

By the Court, Rhodes, J.:

The first question for consideration is whether it is necessary that an execution or order of sale issue to the Sheriff', to authorize him to make sale of the mortgaged premises under a decree of foreclosure and sale of the character of the one presented in this case. The only order respecting the sale contained in the decree, is that the mortgaged premises “ be sold according to law.” No directions are given as to the time, place, terms or manner of sale; nor is the duty of making the sale committed by the decree to the Sheriff.

The Sheriff does not bear such a relation to the Court that he must take notice of its orders and judgments; and without process execute and carry into effect those that require the aid of a ministerial officer. The general rule is that process is the authority of the Sheriff, and no reason is given why in case of a decree of foreclosure, and especially in one that is as devoid of all directions as the one before us, an exception should be found to the rule. When the mortgaged premises consist of parcels of land situated in several counties, it is evident that the rule contended for by the plaintiff could not be worked without producing great confusion and injury.

No express provision is found in the Practice Act prescribing the mode of making sale of the mortgaged premises under a decree of foreclosure, but the Courts have in a great number and variety of cases, acted upon the assumption that where no special provision is made in the decree, it is the duty of the Sheriff of the county in which any portion of the mortgaged premises are situated, to sell the portion of the premises within his county in the manner that he is required by law to sell real estate under execution against the property of a judgment debtor, and that the Sheriff acts under and by virtue of an order of sale issued upon the decree. The issuing of the order of sale is authorized, it is thought, by section two hundred and thirteen of the Practice Act; but whether it is so or not, it is very evident that the practice we have mentioned has too long been adopted and too uniformly acquiesced in, to be now changed by the Court on the ground that it was not fully authorized by that Act.

The plaintiff insists that the defendants are in error in saying that the referee found that there was no order of sale, etc. The referee did not so find; but when the Sheriff’s deed was offered in evidence, objection was made to its introduction on the ground, among others, that there was no order of sale. In the statement on motion for new trial it is stated that the plaintiff introduced in evidence the Sheriff’s deed, “and no evidence was given tending to impeach or contradict any of the recitals in said deed or touching the same, unless the facts found by the referee tend thereto.” The referee sets out the facts found by him “ as the only facts in this actionand there is no finding in respect to the order of sale. We understand from the referee’s report and the statement, that there was no evidence introduced respecting an order of sale.

The order of sale (and in many cases a certified copy of the decree will be sufficient for that purpose) is as essential to a recovery, as the decree or the Sheriff’s deed ; and the recital in the deed is as incompetent proof of the order of sale as of the decree. (Hihn v. Peck, ante, 280.)

Order granting a new trial reversed.