151 N.W. 763 | N.D. | 1915
The facts in this case were somewhat complicated, and pretty largely in dispute. In stating the same, we give all the undisputed facts and some of the minor disputed ones, which are decided without setting forth the evidence or our reasoning therefor, but the major disputes will be treated later. On December 27, 1907, plaintiff, Past, was the owner of twelve and one-half lots situated in the city of Jamestown, and mostly improved property. Upon that date, he and his wife executed a mortgage upon said property to one B. J. Trimble securing the payment of $4,000. This loan was negotiated by the defendant W. B. S. Trimble Company, a corporation whose president was a brother of the mortgagee. This mortgage was later foreclosed, and plays a minor part in the controversy. February 8, 1908, the firm of Bennier & Wilmart obtained a judgment against Past for ■■the sum of $77.20, which was duly docketed in the office of the clerk of the district court for said county on February 20, 1908, thus becoming a second lien upon all of said premises. Thereafter, Past and his wife gave a second mortgage upon all of said premises to the Farmers’ & Merchants Bank of Jamestown to secure the sum of $1,400, which mortgage was later assigned to one Toay. This mortgage was a third lien upon the land, and was likewise foreclosed later, and also has a slight bearing on the issue. There are other judgment creditors (Toay with a $770 judgment) whom we do not believe it necessary to mention in particular, whose liens are inferior to the three mentioned.
The lien with which we are most concerned was the one represented by the judgment of Bennier & Wilmart. After obtaining two executions which were returned unsatisfied, a third and last execution was issued and passed in the hands of the sheriff, and levy and sale made of five of the lots covered by the Trimble Company mortgage. Those five lots are for convenience placed in three groups: one, lot 2, block 35, Jamestown, is known as the feed mill property; lots 13 and 14, block 23, Lloyd’s Second Addition to Jamestown, will be hereinafter referred to as the Mell property; and lots one and two, block 25, Lloyd’s Second Addition, will be mentioned as the Sappenfield property. Upon the sale of this property under such execution, each of said tracts was separately offered for sale, and no bids being received therefor the three tracts were offered together, whereupon the W. B. S. Trimble
Trimble Company were not the judgment creditors. They bought the tracts merely as a speculation, and wo know of no rule of law which required them to pay any fancy prices for the tracts, nor can we see how any improper motives can be attributed to them for failing to bid more than the amount necessary to secure the tracts against ■competitive bidding. In this case, their bid of $119.80 was the highest and best bid, and obtained for them the property. Even if Eennier & Wilmart had bid in the property themselves, there would be no •obligation upon their part to bid a larger sum (Warren v. Stinson, 6 N. D. 293, 70 N. W. 279), and certainly a stranger bidding for ■speculative purposes only was under no such obligation. Thus, under all the circumstances of this case, we do not see that it can be fairly ■said that the inadequacy of the price tended in any manner to destroy 'the good faith of the purchase.
But, furthermore, the statutes §§ 7720, 7547, and 7549, Comp. Laws 1913, which govern, make no provision for the service of the notice upon the judgment debtor, while § 7549 positively provides that “the failure of the sheriff to serve such warrant or notice shall not invalidate the levy, but the sheriff shall be liable to the person
Earlier in this opinion, it was mentioned that the first mortgage of $4,000 was foreclosed. Trimble Company took care of this foreclosure and upon the day of sale apportioned the mortgage among the several tracts with the intention of bidding upon each tract separately. Eor one tract covered by the mortgage, but not by the execution sale, $2,100 was bid; for another, $2,200; for the Mell property, $225; for the Sappenfield property, $300. Eor the feed mill, the balance due upon- their mortgage, somewhere between $400 and $500. As the sale proceeded, each of the different tracts was bid in in the name of E. J. Trimble until there remained only the feed mill, upon which the defendant Duffey unexpectedly bid $1,200. This produced a surplus of $774.43. However, it is stipulated that no disposition should be made of this surplus in this lawsuit. Duffey, to prevent redemption, thereupon purchased of the Trimble Company their interest in the feed mill property for $161, thus becoming the absolute owner of the record title of such property. Appellant points to those circumstances as evidence of conspiracy to devest Past of all his property without any attempt to make the same pay his debts. We do not believe the conduct of Trimble Company in this matter unusual. Unquestionably, they proportioned the mortgage with the light end upon the property which they had acquired at execution sale, and the heavy end upon the remaining property, which might possibly be redeemed. This does not prove that a conspiracy existed some fourteen months prior with Eennier & Wilmart. Another circumstance pointed out by appellant arose later. It will be remembered that Toay was the assignee of the second mortgage and that he desired to redeem the property covered by the execution sale, and to that end paid to the sheriff certain sums and' obtained from the sheriff a certificate of redemption. This, however, was after Past’s title had been extinguished by the issuance of the sheriff’s deed. Therefore, Toay was not a redemptioner in law as to those particular tracts and the -sheriff’s acts were entirely-unauthorized. Toay also attempted to buy the E. J. Trimble mortgage as hereinbefore mentioned, and at that time Trimble Company demanded a bonus of $2,000, but as this was long