14 R.I. 219 | R.I. | 1883
This case may be shortly stated as follows. November 23, 1878, the complainant, being mortgagee of an estate in Woonsocket by virtue of a mortgage given him by Thomas Grimes and John Grimes, sold it under a power of sale contained in the mortgage for $3,000, and, after satisfying the mortgage debt and the expenses of the sale out of the proceeds, had a surplus remaining of $262.15. He paid one half of this surplus to Thomas Grimes. The other half was claimed by *220 one James Hanley and also by said Thomas Grimes, and the complainant therefore, to determine to which of them it belongs, has filed a bill of interpleader against them. The answers show that on February 15, 1877, the undivided half interest of John Grimes in the mortgaged estate was attached on original writ at the suit of George W. Kidd Co.; that Kidd Co. recovered judgment in said suit and took out execution, which was levied on the interest attached on February 25, 1878; that the officer having the execution for service advertised the interest attached for sale, June 8, 1878, and set up the notifications required by law; and that on June 8, 1878, the officer, according to his return, being unable to complete the sale, adjourned it to July 27, 1878, on which day, the adjournment having been advertised by him for the space of one week next prior thereto in the "Woonsocket Daily Patriot," he sold and conveyed the interest attached to one Daniel Smith, who afterwards sold and conveyed it to Hanley. By virtue of said sales and conveyances Hanley claimed the half surplus in controversy. Thomas Grimes also claims the half surplus as grantee of a purchaser at an execution sale of said interest made prior to the sale to Daniel Smith, but under an attachment of later date. The only ground on which he claims to have a better right than Hanley is that the execution sale under which Hanley claims was void because the officer had no power to adjourn the sale from June 8 to July 27, 1878, for the reason assigned. Thomas Grimes in his answer also controverts the officer's return, alleging that the sale was not adjourned on June 8 to July 27, but that the property was put up at auction and sold on June 8, being struck off to one William A. Fitzgerald, without adjournment, and that it was not until long afterwards that the adjournment was advertised in the newspaper. He has, however, submitted no evidence in support of this allegation, and the case has been argued simply on the question whether the officer had power to adjourn the sale, taking the adjournment to have been made as stated in his return.
A statute of the State, which was in force when the sale was adjourned, and which is still in force, Gen. Stat. R.I. cap. 212, § 13; Pub. Stat. R.I. cap. 223, § 13, provides as follows: "In case of accidents or extraordinary storms or tempests, the sheriff *221
may from time to time adjourn the sale of the estate levied on, giving one week's notice thereof by publication in a newspaper in the manner above provided." The officer's return does not show that the adjournment here in question was made under this section, for it does not show that it was made because of any accident, storm, or tempest. The adjournment was therefore void unless it be valid independently of this section. The section was first incorporated into the statute law of the State in the revision of 1857. The case of Reynolds v. Hoxie,
Decree accordingly.