Reese v. Dobbins

51 Iowa 282 | Iowa | 1879

Rothrock, J.

i. judicial pay costs. — That Eeese, the plaintiff in execution, re- , fused to comply with the bid made by him on the 22d day of June, and that the sale, upon such refusal, was publicly adjourned, is not denied.. There is a .conflict in the evidence as to the time the adjournment was announced. It was, however, before 4 o’clock p. m., and we . think the court below was justified in finding from the evidence that it was within a very short time, say not to exceed half an hour, after the property was bid off. It appears from the evidence that Eeese refused to comply with his bid because by oversight he had not bid enough to cover the whole . mortgage debt, a part thereof being not yet due.

It is the policy of the law, and certainly should be desirable, both to debtor and creditor, that sales of property in satisfaction of debts should bring as much as possible, and courts should disregard mere irregularities in order to attain that end. Joseph Dobbins, the mortgagor and judgment debtor, is .not seeking to set aside the last sale and hold the first good. It is not his interest to do so. By the first sale a large part .of his debt was left unpaid, but by the final sale his debt is fully discharged. William Dobbins purchased the land with the mortgage lien upon it, and, as it appears to us, he is seeking some technical advantage by which he may redeem for much less than the mortgage debt.

Section 3089 of the Code provides: “Where the purchaser at sheriff’s sale fails to pay the money when demanded, the plaintiff or his attorney may elect to proceed against him for the amount; otherwise, the sheriff shall treat the sale as a nullity, and may sell the property on the same day, or after a postponement, as above authorized.”

It is urged by counsel for appellant that the statute can have no application where the plaintiff in execution is the purchaser, because he is not required to pay the amount of his bid, but the same is to be credited on his judgment.

It is true he may not be required to pay that part of the purchase money which should be credited on the judgment, but he must pay the costs. It appears from the record in this case that when the execution was issued the costs amounted to one hundred and nine dollars and seventy-five cents. To this must be added the costs upon the execution, which is no inconsiderable amount. Now, we have no doubt that, under this statute, if the plaintiff in execution bids off property, and refuses to .pay the costs, the sheriff may treat the sale as a nullity and postpone the sale to another day.

It appears that William Dobbins was present at the first sale, but had gone away before the adjournment was announced by the sheriff. His counsel was advised of the adjournment shortly after it was made, and the subsequent adjournments appear to have been made by some arrangement between counsel for the respective parties in order that William Dobbins might be personally notified of the time when the adjourned sale would take place. It further appears that he failed to receive such notice in time, and was not present at the last sale. We are unable to see how he was prejudiced by not being present. His presence certainly would not have prevented the land selling for so much as it did, if that had been a desirable result.

2_. ad_ joumment. We do not regard the fact that there was one more adjournment than is authorized by section 3083 of the Code, and that

the time was extended beyond the period therein' £xecx? as more than a mere irregularity, to be taken advantage of only on a showing of prejudice. No such showing is made, but on the contrary we think the court may have fairly found from -the evidence that these successive adjourn- ■ ments were made to accommodate appellant’s counsel ancl enable him to notify appellant of the time fixed for the sale. There is nothing in this opinion in conflict with the opinion of this court in Downard v. Crenshaw, 49 Iowa, 296. We need not point out the distinction. It is too apparent for discussion.

Affirmed.