22 Cal. 263 | Cal. | 1863
The action being to enforce a penalty or forfeiture, the claim is to be strictly construed, and the plaintiff must show clearly that his case comes within the statute imposing the forfeiture. The statute provides that “ an officer selling without the notice prescribed by the last section shall forfeit five hundred dollars to the aggrieved party.” The party is not injured or “ aggrieved ” unless it appears that by means of the sale, without notice, he has been deprived of his property. Unless the sale is perfected by a transfer of the title, the debtor has suffered no injury, and is not “ aggrieved ” within the intent and meaning of the statute. It is the fact that the party has been injured or damaged by the sale of his property by an officer without notice that entitles him to the forfeiture. By the sale complained of in this case, the plaintiff was not injured, as under it his property was not conveyed, or his interest therein divested or affected in any way. Besides, in this case there was no “ sale ” of the property under the defective notice. Ho thing passed by the proceedings—no right in the property was vested in the purchaser until he paid the purchase money, and until then, the sale was not perfected or completed. The Sheriff, if the money was not paid immediately, could without delay resell the property. In this case the purchaser did not pay the purchase money, and
The judgment is affirmed.