57 N.W. 789 | N.D. | 1894
Lead Opinion
The appeal is from an order vacating an execution sale of real estate. At the sale the plaintiff in the execution bid in the property for $96. One of the grounds on which the validity of the sale is attacked is the inadequacy of the price for which the'property was sold. There was over 1,700 acres sold at the sale, and it appears that the land was worth at least $4 an acre. That this in adequacy is so gross as to shock the conscience cannot be doubted. In addition it appears that the sheriff of the sale utterly failed to comply with the statute which requires him to offer the land for sale in separate parcels. There were no less than 11 distinct tracts sold in a lump, without even an
But there is connected with a sale for an inadequate price, in this case, an irregularity in the shape of the sale of 11 distinct parcels in a lump. What effect has this irregularity in taking the case out of the rule we have just enunciated? The statute makes it the duty of the sheriff to sell separately several known lots of parcels. He should not sell them in a lump. Section 5144, Comp. Laws: “And when the sale is of real property consisting of several known lots or parcels they must be sold separately.” This statute was violated. Eleven distinct parcels were sold as one piece. But should the sale be set aside on this account? That depends upon the purpose of the statute and the particular facts of this case. The sheriff is required to sell each parcel separately, for two reasons. One is that the land may bring the best price, and that no more than enough to pay the lien shall be sold; and the other is to enable the defendant to redeem any one or more of the parcels, without being compelled to redeem all the land sold. When sold in a lump it is impossible for him to redeem less than the whole, because their is no basis for redemption of any particular parcel or parcels. Now, so far as the object of the statute is to secure the best price for the property at the sale, the defendant, who has the right to redeem, and has a
But we are not necessarily called upon to decide whether the sale should have been set aside under these conditions, as it is apparent that the defendant, by his conduct and delay, has waived his right to attack the sale. He has repeatedly recognized and treated it as valid. He attempted to redeem froxn the sale, and before this attempted redemption he paid the balance due upon the judgment, and took a satisfaction of the judgment, and had it placed on record. Merely paying the balance of the judgment might not be construed as an acquiescence in the sale; but when after making the payment, the defendant accepted and recorded a satisfaction of the entire judgment, he claimed the benefit of the partial payment resulting from the sale of his land. In his letters to plaintiff’s counsel he distinctly states that it is his purpose to redeem. Thei'e is no hint to be found in any of them that he claims that the sale is invalid for any reason. To clear up all doubt as to his pux-pose to abide by the sale, he attempted to redeem therefrom. The shex'iff, assuming the x'edemption to have
The sale appears to have been regarded by the learned judge as void also for the reason that there was no one present thereat except the sheriff and plaintiff's attorney. This ruling was placed upon that provision of the statute requiring the sheriff to sell to the highest bidder. Comp. Laws, § 5144. The reasoning is that there must be at least two bidders at the sale; otherwise, there is no highest bidder. We are clear that this is a too narrow construction of the statute, — one which was never contemplated by the legislature. It would defeat every sale unless the plaintiff could induce some one to bid upon the property. What the statute clearly means is that, after the public have been fairly notified of the sale, the property shall be sold for the best price that can be obtained. It is not necessary that there should be more than one bidder to make a sale a sale at public auction. It is sufficient if the public have been fully advised of the sale by legal publication of notice, and have the right to attend and bid. Those who do not attend the sale assert by their conduct that they do not wish the property at any price. Must the plaintiff’s right to collect his judgment be forever stayed because he, alone, is willing to buy the property? We have no doubt on this point on principle, and we are able to cite eminent authority to support our view that the absence of all other bidders did not of itself render the sale either void or voidable. Learned v. Geer, 139 Mass. 31, 29 N. E. 215; 2 Freem. Ex’n, § 308, pp. 1046, 1047. Such a sale might, under certain circumstances, be set aside, but this case does not present such circumstances. The order, vacating the
Concurrence Opinion
(concurring.) I think the sale of the realty was not rendered absolutely void by the sale of separate parcels in solido, without first offering the parts separately; nor do I think the sale was made void because no one bid at the sale except the creditor; but in my judgment the sale was clearly irregular under § 5144, Comp. Laws, because the parcels were not separately offered before being struck off in mass. Such an irregularity in the sale of real estate upon execution would, for reasons stated at length in the opinion by Judge Corliss, furnish sufficient ground for setting aside the sale by a direct application to the court, made by motion in the action in which the execution issued. The practice of moving by motion in the action to set aside irregular sales is well established, and is a speedy and' convenient remedy. But in the case under consideration I am quite clear, for reasons stated fully in the opinion by Judge Corliss that the debtor has lost his right to make the application. He has been guilty of great laches as to time, and has also impliedly waived his rights by his conduct with reference to the sale. I fully concur with the views expressed by Judge Corliss as to the proper disposition to be made of the case, but I prefer to limit my concurrence to the grounds I have mentioned, and do not care to express an opinion upon other features discussed in said opinion.
The order should be reversed.