Brown v. Butters

40 Iowa 544 | Iowa | 1875

Miller, Ch. J.

I. The record shows that the judgments upon which the land in controversy was sold, were rendered .against 1 .ru:mciax. meat. ‘ the plaintiff’s grantors, and became liens prior to his purchase of the land. The only ground upon which it is sought to invalidate the sheriff’s sales is because the land was sold on each execution for less than two-thirds the appraised value thereof. If the property of the judgment debtor is sold on execution, for less than two-thirds of the appraised value thereof, at the time of sale, exclusive of all liens, mortgages or incumbrances thereon, the sale will be void. Maple v. Nelson, 31 Iowa, 322. In the record before ns this is not shown. It is not averred in the petition that the land was sold for less than two-thirds of the appraisement, exclusive of all prior liens, nor does it so appear in the exhibits to the petition. On the contrary the returns of the sheriff on his executions recite that the bid on each execution, upon which the land was sold, was in each case more than two-thirds the appraised value of the property, after deducting prior liens and incumbrances. In the absence of an averment in the petition of the fact that the sales were made for less than two-thirds of the appraised value of the land, and in face of the recitals in the returns of the sheriff that each sale was made for over that amount, it will not be presumed that the sales •were made in violation of the statute in this respect.

• II. Counsel have ably discussed the question whether the amount of prior liens and incumbrances should be found by the appraisers when making the appraisement, or whether after the appraisers have fixed the whole value of the property without reference to prior liens, the sheriff may ascertain the amount thereof, and sell the property .on his execution for such sum as, added to the prior liens, will be equal to two-thirds of the appraised value of the .property. We are not ,3___.ilTeg_ uiantym. called on to decide this question, in the state of the record before us. We may say, however, that if the liens should properly have been ascertained by the appraisers instead of the sheriff, (which we do not decide,) yet if this duty should be performed by the latter, and the sale in fact be made for more than two-thirds the appraised value of the property, exclusive of prior incumbrances, the sale would not be rendered invalid for the reason that the incum-brances were thus ascertained. It would be but a mere technical irregularity, working no prejudice to the defendant in execution. This irregularity does not affect the power of the officer to make the sale. The manner of arriving at the amount of the prior liens is not essential to the power of the officer to sell. The policy of the law is to uphold judicial sales, and they will not be held invalid for mere irregularities not affecting the power of the sheriff to sell. Hill v. Baker, 32 Iowa, 302; Davis v. Spalding, 36 Iowa, 610; Cavender v. Heirs of Smith, 1 Iowa, 306, and cases cited in note o to Cole’s Éd.

The demurrer was properly sustained, and the judgment must be

AeetbMed.