220 P. 391 | Ariz. | 1923
Action for money had and received. The facts out of which this action arose are agreed to by the parties, and, essentially, are as follows: Appellee, A. & B.. Schuster Company, a corporation, carrying on a general merchandise business, some time after September 25, 1918, brought suit against Manuel Gonzales and wife on a past-due promissory note for $455.50, and attached certain real property as security to pay any judgment that might be obtained. In due time judgment was entered against the Gonzales, and the attachment lien foreclosed. Defendant Jacob Hamblin, who was the sheriff of Apache County at the time, and into whose hands the special execution was placed for enforcement, duly noticed the property for sale. Pending the advertisement, and two days before the time fixed for sale, Gonzales made a legal and proper claim of homestead on said land, and recorded same in the
Barth later brought this suit against the A. B. Schuster Company and Jacob Hamblin as sheriff to recover said $600. In the course of the trial the case was dismissed as to the sheriff, but whether at the instance of plaintiff, or defendant, or the court, the statement of facts does not show; nor can we tell from the statement what the appeal is from, as it simply states that notice of appeal was given. But we will give the benefit of any doubt to the plaintiff, and assume such notice was from the final judgment and not from the order of dismissal. The court gave judgment to Barth for $20.50, being a balance of the $600 purchase price left after paying to Schuster Company the amount of the judgment, interest and costs. We are not interested as to whether this judgment in favor of plaintiff for $20.50 was error, since the defendant did not appeal or file any cross-assignments, although he does notice it in his brief, and argues therein it was erroneous.
The appellant’s case (and it is the only one that raises any question proper for our decision) is this: Can a purchaser of property at an execution sale, which is known by him at the time to be the debtor’s homestead and exempt from forced sale, upon a failure of his title, recover the amount of the purchase
“The appellant having full knowledge of the facts concerning the Fitzmaurice location, the belief proceeded from a consideration of the facts that in the light of the facts, as a matter of law, in its judgment the relocation of the property by Fitzmaurice was void. But this was the very hazard that appellant took when, with its eyes wide open, so to speak, to a contest over the Fitzmaurice relocation, it paid the redemption money. Under the circumstances of this case such an error of judgment may not be relieved against upon any equitable principle of which we are aware.”
How can the conduct of appellant Barth be differentiated from that of the Copper Belle Company?
It is not questioned that the claim of the Schuster Company against Gonzales was a just one, and that the company was entitled to every cent it received. It was collecting what was due it; it was guilty of no wrong, or oppression, or impropriety in attaching the Gonzales property, or in foreclosing its attachment lien, or in placing execution in the sheriff’s hands for enforcement, or directing the sheriff to advertise for sale, for up to this time no homestead had been declared; and while a sale after the filing of the homestead declaration, unless made in conformity with paragraph 3295 of the Civil Code providing for the appointment of appraisers, etc., may be ineffectual to pass title to the purchaser, we think the purchaser is charged with the knowledge of that fact as well as anyone else, and that he buys at his own risk.
If the appellee should be required to pay back to appellant what it received, it would find itself in this predicament: Its judgment against the Gonzales satisfied of record and nothing to show for it. Between the maneuvering of the purchaser and the debtor, with the sanction of the courts, the creditor might thus be deprived of both his judgment and the fruits thereof.
This is not a case in which any advantage of the purchaser was taken. The execution creditor had not made any representations to him; had held out no inducements to him to purchase; he knew everything. No fact was kept from him either by the sheriff or
That the debtor was not the owner of the property sold does not entitle the purchaser to recover the purchase price from the execution creditor is the holding of practically all courts of the land. See note to Dresser v. Kronberg, Ann. Cas. 1913B, 542 (108 Me. 423, 36 L. R. A. (N. S.) 1218, 81 Atl. 487), which is one of the few cases holding to the contrary. Where the purchaser fails to get a title because the property is the homestead of the debtor and exempt from forced sale, it would seem the same rule should apply. But we apprehend that even the court that adopted the rule of permitting the recovery when the debtor had no title to the property sold (Dresser v. Kronberg, supra) would not sustain the action when the undisputed evidence was that the purchaser knew all the facts before he purchased. In such case the' rule should be no different when the proceeding is under a special execution than when under an open execution.
What we said in another case concerning a litigant, who acted more precipitatedly than wisely, we repeat here:
“We have always understood the law to be that persons under no legal disability, as a general rule, laave power to do as they wish with, their own. They may enter into contracts; they may give away their substance; they may spend it for mere baubles; they may exchange it for high and riotous living; it may go to satisfy vanity or pride or ambition; and the courts are helpless to say nay or to control their freedom of action in those respects. Courts are not instituted to control and supervise the private dealings of persons compos mentis who are upon an equal*552 footing and labor under no restraint of person, property, or mind, such as fraud, duress, coercion or extortion. Freedom of contract and freedom in the use and disposition of one’s own are no less sacred than freedom of speech.”, Merrill v. Gordon, 15 Ariz. 521, 140 Pac. 496.
The court should have given appellant judgment for all of the costs, he having been successful in obtaining the judgment, even though it was for much less than sued for. Paragraph 628, Civ. Code 1913. With this modification the judgment is affirmed, the costs of this appeal being taxed to the appellant.
McALISTER, C. J., and LYMAN J., concur.