Stein v. Chambless

18 Iowa 474

• Court: Supreme Court of Iowa
• Decided: June 7, 1865
• Status: Published

Opinion

Lowe, J.

1. Judicial sale: redemption. The purchase by Ohambless of Banford’s right to redeem the property from the sales to Dougherty, and to Lemp & Sells, conferred upon him no other or better right than Banford himself possessed, and the legal effect of a redemption by him is the same as if Banford himself had redeemed, leaving the property subject to be taken in satisfaction of any subsisting lien or judgment thereon. Crosby v. Elkader Lodge No. 72, 16 Iowa, 899; Curtis v. Millard, 14 Id., 128.

2. - irregularity in sale. Argu. 1. - sale after return day. It follows, therefore, that the conveyance by the sheriff to Chambless, under the sales named, was irregular and wholly ineffectual to render nugatory the plaintiff’s judgment lien, and the sale under it to him. This, as a proposition of law, does not seem to be controverted by counsel for appellants. But the chief ground of complaint is, that in the sale under the plaintiff’s judgment, ; . r ° ° 7 an irregularity intervened, rendering the same effectual to pass the title of the property to him ; namely, that there was a levy upon the property by one execution, and a sale under said levy by or in virtue of an alias instead of a venditioni exponas. Regularly, under the directions of the statute, the sale should have been made under this last writ, instead of an alias execution; but, because it was not, it does not follow that the sale was void and ineffectual to pass the title to the purchaser, for the reason that the power of the sheriff to sell under the first execution was not, and had not been, exhausted at the time of the sale; and for this very sufficient reason perhaps was, that the officer made his return to the effect that he had sold the property under both executions aforesaid. At all events it has long and often been settled . by the courts, that if the officer levies before the expiration of the execution, he may complete the sale as well after as before the return day of the writ. Phillips v. Dana, 3 Scam., 558; Wood v. Colvin, 5 Hill, 231.

The issuing, therefore, of the second writ under the circumstances stated in this case, neither added any new power to the sheriff, nor did it have the effect to annul that which he possessed under the first writ; and, inasmuch as it affirmatively appears from his return that he both levied and sold under the first execution, it would be going far to hold that this act of supererogation, in placing an alias writ in the hands of a sheriff, had the effect legally to vitiate the transaction. To so hold would not quadrate very well with the policy of the law in upholding judicial sales, which this court has so fully recognized and laid down in the cases of Hopping v. Burnam, 2 G. Greene, 39; Shaffer v. Bolander, 4 Id., 201; Burton v. Emerson, 4 Id., 393.

In the case before us, the judgment, levy and deed are confessedly unobjectionable. Where this is so, under the authorities just referred to, and which but reflect the doctrine of a large class of decisions, other omissions or irregularities in a sheriff’s sale will not affect the right or title of an innocent purchaser.

Affirmed.