63 Cal. 517 | Cal. | 1883
On the 20th of December, 1879, Margaret Kelly, Avife of her co-plaintiff Martin, purchased, at execution sale, a tract of land which had been levied upon by the defend
Unquestionably, upon that refusal, she had her remedy. She might have resorted to a writ of mandamus to compel the execution and delivery of a deed, or she might have sued him in damages for a refusal to execute it. But instead of resorting to either of those remedies, the plaintiffs brought this action to recover the penalty prescribed by section 693, Code of Civil Procedure, for selling real property under execution, without notice. That section provides as follows:—
“ An officer selling without the notice prescribed by section 692 forfeits five hundred dollars to the party aggrieved, in addition to his actual damages”; and the question arises, whether a purchaser at execution sale, without notice, is the “ aggrieved party” within the meaning of the section.
We think he is not. Such a sale is either valid or invalid; it passes the title to the purchaser or it does not. If it be a nullity and passes no title, the purchaser sustains no injury, and no right of action for the forfeiture accrues. Such an action is not maintainable even by a party to the execution, unless lie has been deprived of his property by a sale under it without notice (Askew v. Ebberts, 22 Cal. 265); and if he has been deprived of his property by reason of the fact that it has passed from him by the sale to a purchaser at the sale, then the latter is not injured, for he has obtained what he bought.
Now, the real property of an execution debtor, levied on to
We find nothing in Sexton v. Nevers, 20 Pick. 451, which is in conflict with this conclusion. That was an action on the case by a purchaser at execution sale, who was the plaintiff in execution, against an officer to recover damages for neglect of the officer to comply with the requisitions of the law in selling real property, in consequence of which the plaintiff had been deprived of the property. The acts or omissions of the officer were such as, under the laws of Massachusetts, rendered the sale wholly invalid, and nothing passed to the plaintiff by the officer’s deed. Therefore the plaintiff was held entitled to maintain an action against the officer for the neglect of duty by which he had been
Judgment affirmed,
McICinstey, J., concurred.
Ross, J,, concurred in the judgment.
Hearing in Bank denied.