Pecaravich v. Gilmore

D. Alaska

Pecaravich v. Gilmore

6 Alaska 108

CourtDistrict Court, D. Alaska

DecidedMay 4, 1918

DocketNo. 155-KA

StatusPublished

Cited by3 cases

This text of 6 Alaska 108 (Pecaravich v. Gilmore) is published on Counsel Stack Legal Research, covering District Court, D. Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pecaravich v. Gilmore, 6 Alaska 108 (D. Alaska 1918).

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Opinion

JENNINGS, District Judge.

The purchaser at an execution sale moves for confirmation of sale. Koel has filed objections to the confirmation of the sale, alleging (1) that the execution was issued at a date more than five years after the judgment, which judgment had never been revived; (2) that he (Koel) is in possession of the property, and is the successor in interest of a purchaser under foreclosure sale of a “second” mortgage given by judgment debtor; (3) that even he (Koel) holds subject to a prior “first” mortgage.

At common law no confirmation of a sale on a legal execution was necessary, but a few of the states have provided for confirmation. Confirmation of such sale is a purely statutory proceeding, and, when granted, attests simply that the proceedings connected with the sale are regular. It is not res judicata as to any contention that the execution is void or fraudulent. 17 Cyc. pp. 1265-1269 et seq.

No one can be heard to object to confirmation, except the judgment debtor, or, in case of his death, his representative. C. E. Alaska 1913, § 1115. Koel is not the judgment debt- [109]*109or, nor his representative, nor a party to the suit. If he has lawful possession by virtue of a previous sale on foreclosure decree, his rights are not affected by the confirmation. When our statute gives the purchaser at a confirmed sale the right of possession during the period for redemption, it does not mean that the purchaser has that right’as against a prior bona fide grantee of the judgment debtor, or survivor of such grantee. Koel therefore cannot be heard on this proceeding.

There being no other objection made or filed, the sale will be confirmed.

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JENNINGS, District Judge.

The purchaser at an execution sale moves for confirmation of sale. Koel has filed objections to the confirmation of the sale, alleging (1) that the execution was issued at a date more than five years after the judgment, which judgment had never been revived; (2) that he (Koel) is in possession of the property, and is the successor in interest of a purchaser under foreclosure sale of a “second” mortgage given by judgment debtor; (3) that even he (Koel) holds subject to a prior “first” mortgage.

At common law no confirmation of a sale on a legal execution was necessary, but a few of the states have provided for confirmation. Confirmation of such sale is a purely statutory proceeding, and, when granted, attests simply that the proceedings connected with the sale are regular. It is not res judicata as to any contention that the execution is void or fraudulent. 17 Cyc. pp. 1265-1269 et seq.

No one can be heard to object to confirmation, except the judgment debtor, or, in case of his death, his representative. C. E. Alaska 1913, § 1115. Koel is not the judgment debt- [109]*109or, nor his representative, nor a party to the suit. If he has lawful possession by virtue of a previous sale on foreclosure decree, his rights are not affected by the confirmation. When our statute gives the purchaser at a confirmed sale the right of possession during the period for redemption, it does not mean that the purchaser has that right’as against a prior bona fide grantee of the judgment debtor, or survivor of such grantee. Koel therefore cannot be heard on this proceeding.

There being no other objection made or filed, the sale will be confirmed.

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Bluebook (online)

6 Alaska 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pecaravich-v-gilmore-akd-1918.

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