46 Neb. 466 | Neb. | 1895
In the district court of Saline county Jane E. Clark and others brought suit against Calvin M. Burkett to foreclose an ordinary real estate mortgage. In due time a decree was rendered as prayed, the property sold, and Burkett appeared and resisted the confirmation of the sale, which was, however, confirmed, and he has prosecuted to this court a petition in error to reverse the judgment or decree of confirmation. The order of sale was dated and issued September 1,1891, and the sheriff caused the property to be appraised twice and twice offered it for sale, once in the month of October and once in the month of November of said year. The property, however, was not sold on either of those occasions for want of bidders. The sheriff, then, without returning his order of sale, on the 18th of November advertised the property for sale a third time, and sold it on the 21st of December. This is the sale in controversy. On the 23d of November the sheriff caused this property to be re-appraised. December 10 he filed in the office of the clerk of the district court, from which his execution or order of sale was issued, the re-appraisement made by him of the prop
1. That the sheriff advertised the premises for sale before re-appraising them and before filing in the office of the clerk of the district court the re-appraisement made of the premises, together with the certificates furnished him by the clerk of the district court, the register of deeds, and the county treasurer, in pursuance of the statute. The question presented involves the construction of sections 491a, 4916, 491c, and 491d of the Code of Civil Procedure. These sections, so far as material here, are as follows:
“See. 491a. Whenever, hereafter, execution shall be levied on any lands and tenements, the officer levying the same shall call an inquest of two disinterested freeholders, who shall be residents of the county where the lands taken on execution are situated, and administer to them an oath impartially to appraise the interest of the person, or persons, or corporation against whom the execution is levied, in the property so levied upon, and such officer, together with said freeholders, shall appraise said interest at its real value in money, and such appraisement shall be signed by such officer and said freeholders, respectively.
“Sec. 4916. That for the purpose of the appraisement mentioned in the last preceding section, the officer and the freeholders therein named shall deduct from the real value*471 of the lands and tenements levied on, the amount of all liens and incumbrances for taxes or otherwise, prior to the lien of the judgment under which execution is levied, and to be determined as hereinafter provided, and which liens and incumbrances shall be specifically enumerated, and the sum thereafter'remaining shall be the real value of the interest therein of the person, or persons, or corporation against whom or which the execution-is levied.
“Sec. 491e. It shall be the duty of the county clerk, the clerk of the district court, and the county treasurer of the county, and the treasurer of the village, town, or city, wherein such levy is made, for the purpose of ascertaining the amount of the liens and incumbrances upon the lands and tenements so levied upon, on application of the sheriff in writing, holding such execution, to certify to said sheriff, under their respective hands and official seals, the amount and character of all liens existing against the lands and tenements levied on, which are prior to the lien of such levy, as the said liens appear of record in their respective •offices. * * *
“Sec. 49lei. The officer holding such appraisement shall forthwith deposit a copy thereof, including his application to the officers enumerated in section 3 of this act, and their official certificates as in said section provided, in the office of the clerk of the court from which such execution issued, and shall immediately advertise and sell said real estate, lands, and tenements agreeably to the provisions of this act.” * * *
What do these sections require of an officer holding an execution for the sale of real estate? We first remark that these sections of the statute make no distinction between an ordinary execution issued on a judgment at law and an execution or order of sale based on a decree in equity. The terms “execution” and “order of sale” are used interchangeably. The duties of an officer as to appraising real estate which is about to be sold are the same, whether he be
Recurring to the statutes just quoted, we observe that section 491a declares that whenever an execution shall be levied on any land, the officer levying the same shall, etc. This would seem to imply that the first duty of an officer after receiving au execution, commanding him to sell real estate, would be to levy upon such real estate. What is a levy? To do the acts by which a sheriff sets apart and appropriates, for the purpose of satisfying the command of a writ of execution, a part or the whole of a defendant’s property. (Anderson’s Law Dictionary; Lloyd v. Wykoff, 11 N. J. Law, 218.) Just what acts must be performed by an officer in order that such acts may constitute a levy upon real estate sought to be sold under an execution issued on a judgment at law is a question not presented by this record and not decided, and we are not aware of any statute which defines a levy or declares what an officer holding an execution must do in order that his acts may constitute a levy upon real estate; but since to levy an execution is to set apart and appropriate the property of a certain person for its satisfaction, we are quite clear that an officer holding an execution or order of sale, in and by which he is commanded to sell certain real estate therein described for the satisfaction of such execution, is not obliged, in or
The word “forthwith,” found in section 491d, means immediately; without delay; directly, — regard being had to the nature of the act required to be performed. (Inman v. West Fire Ins. Co., 12 Wend. [N. Y.], 452; Moffat v. Dickson, 3 Colo., 313; Bennett v. Lycoming Comity Mutual Ins. Co., 67 N. Y., 274.) But whatever the technical meaning of “forthwith” in this statute, and whether the facts and circumstances of a particular case would excuse and protect an officer who neglected or delayed the depositing of the appraisement, one thing is beyond all question, viz., that the appraisement must be deposited before the sale is advertised. The statute must be construed as if it read: “ The officer holding such appraisement shall forthwith deposit a copy thereof and thereupon shall immedi
In La Flume v. Jones, 5 Neb., 256, in the third point of the'syllabus it was said that such an appraisement might be deposited any time before sale. In this case Lake, C. J., speaking for the court, said: “The next point relied on is, that the ‘sheriff failed to deposit a copy of the appraisement * * * with the clerk/ In answer to this objection it may be said that the record is silent as to when such copy was in fact deposited. It shows simply that a copy of the appraisement was, in fact, deposited. It will in such case be presumed that the sheriff did his duty, and made the deposit before the publication of the notice of the sale.” There is no doubt but that this is law, but, unfortunately, the learned chief justice continued as follows: “But even if the sheriff had neglected his duty in this respect, it would not be ground for setting the sale aside, if it were in fact deposited before the sale took place,” and cited in support of this last remark Merritt v. Borden, 2 Dis. [O.], 503. In the case cited section 433 of the Code of Civil Procedure of the state of Ohio was construed. That section contained the identical language found in section 49Id above quoted, and the court said: “The question submitted to this court is this: Whether the inquisition taken by the sheriff was filed with the clerk within the time required by section 433 of the Code. It appears the advertisement for the land was published before the inquisition was filed, and we have held in general term that no publication can be legally made until the sheriff has deposited a copy of the valuation in the clerk’s office. The language of the section is: ‘The officer receiving such return shall forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and immediately advertise and sell such real estate agreeably to the provisions of this title.’ We shall adhere to the construction we then gave to the
2. The second alleged irregularity of the officer relied on here for reversing the decree of confirmation is the sell
It seems to be the contention that the officer was authorized to cause the property in controversy to be reappraised and offer it for sale under such re-appraisement on the execution of September 1, notwithstanding it had expired, and that authority for this contention is found in section 495. That section is as follows: “In all cases where real estate may hereafter be levied upon, by virtue of any execution or order of sale, and shall have been appraised, and twice advertised and offered for sale, and shall remain unsold for want of bidders, it shall be the duty of the officer to cause a new appraisement of such real estate to be made, and successive executions or orders of sale may issue at any time in vacation, after the return of the officer ‘not sold for want of bidders,’ at the request of the plaintiff or his attorney.” We do not so understand it. The statute is a limitation upon the power of an officer to more than twice advertise and offer for sale real estate under.one appraisement. But for this statute an officer would be compelled to make but one appraisement of real estate which he desired to sell under execution. He might go on indefinitely offering and advertising the property for sale and thus incumbering it with unnecessary costs and expenses. We reach the conclusion, therefore, that when the officer in the case'at bar had caused the real estate to be appraised and had first offered it for sale in October, and it was not sold for want of bidders, that he then should have returned his writ to the court to which it was made returnable, setting forth what he had done under it, as he could not have again advertised the property for thirty days and offered it for sale within the life of the execution. Having returned his writ, the plaintiff in the execution, in either vacation or term time, might, by virtue of the provisions of said sections 495 and 504, have taken out an
The decree of the district court confirming the sale is reversed and the cause remanded with instructions to tax to the complainants in the decree the costs of this proceeding, the costs of the second and third advertisements of the property, and the costs of its second appraisement.
Reversed and remanded.