52 Cal. 345 | Cal. | 1877
Assuming that the execution was void, we submit that a sale which is utterly void, made upon a void execution, cannot operate as a satisfaction of the judgment. It is void, and accomplishes nothing. (Field v. Paulding, 3 Abb. Pr. 139.)
The title does not fail by reason of any irregularity in the sale, but because the Sheriff had in fact no execution. And sec. 708 of the Code is not applicable to such a case.
James H Birch, Jr., and Bodley & Campbell, for the Respondent.
As Reed was the judgment-creditor, had the execution levied and the land sold, all under his own direction and supervision, and was personally present and bought the property, with a full and complete knowledge of all the facts, he could not (even if done within a reasonable time) invoke a Court of Equity to relieve him from a mere mistake of law, especially as there was a plain remedy under the statute. He must, therefore, stand by his own act in the premises, uninfluenced as they were, so far as other parties are concerned, by fraud, misrepresentation, or ignorance.
The doctrine caveat emptor fully applies to this case. (Boggs v. Hargrave, 16 Cal.; Herman on Executions, p. 361, sec. 214.) If, therefore, he had any right to relief in the premises it was purely statutory.
Freeman on Judgments, p. 398, sec. 478, declares “ that a sale, until set aside, is a satisfaction,” and that “ the purchaser must pursue the remedy given by the statute.”
Herman on Executions, p. 461, sec. 282, says: “ The officer’s
The current of authorities on this subject is unbroken; and,, until this record of satisfaction is set aside by direct proceeding, it must stand with the same force and effect as any other record, of the Court.
We see no reason to question the correctness of the judgment in determining that the execution issued upon the judgment in favor of Elliott Reed and against Samuel J. Crosby was void, and that the sale made under the execution was also void. The owner of the judgment became the purchaser under that execution, and his bid—which was the full amount of the judgment—was credited upon the execution. The return upon the-execution was an apparent satisfaction of the judgment, but it. was not a satisfaction in fact, because the execution and -sale-were void, and the owner of the judgment acquired nothing by virtue of the attempted sale under the execution. Hot only the execution and sale, but also the apparent satisfaction of the-judgment, ought to be set aside as void.
Cause remanded, with directions to modify the judgment in accordance with this opinion. Remittitur forthwith.
Wallace, C. J., being disqualified, did not sit in this case.