25 N.M. 379 | N.M. | 1919
OPINION OP THE COURT.
This action was begun in precinct No. 1, Quay county, by filing with the justice of the peace thereof on August 3, 1915, a written complaint containing the following allegations:
“On this 3d day of August, A. D., 1915, personally appeared Wilson R. Springer before the court of Samuel McElroy, justice of the peace in and for precinct No. 1, of the county of Quay, in the state of New Mexico, and after being duly sworn in conformity with law states: That James R. Wasson, of the city of Tucumcari, Quay county, New Mexico, by force, intimidation, fraud, and stealth, has entered into the lands and tenements of Wilson R. Springer, to wit, lots one (1) and two (2) of block sixteen (16) of the original townsite of the town (now city) of Tucumcari, Quay county, New Mexico, and continues in possession of the said premises after a sale thereof by execution, not claiming title derived from the purchaser at the sale, and that this happened in the city of Tucumcari, Quay county, New Mexico, on the day and date last above mentioned. “W. R. Springer.”
Plaintiff claimed title to two lots in the .city of Tucumcari by virtue of a sheriff’s deed based upon an execution sale to enforce payment of a judgment in favor of the plaintiff and against the defendant (appellant and appellee respectively herein) duly rendered by the district court of Quay county in cause No. 1456, on the docket of said court, wherein appellee herein was plaintiff and appellant was defendant.
There are 42 assignments of error filed in this court. Many issues are raised by two or more assignments, and many assignments are plainly without merit. We will consider only such alleged errors as are necessary to the determination of the case, and all other assignments have been reviewed and found to be without merit.
It is stated by appellee in his brief:
“The court in this case found that appellee was entitled to damages in the sum of $60 per month for the period from July 27, 1915, to- April 12, 1916, amounting in the aggregate to $492. The reason that the 12th day of April, 1916, was specified was that on that day the appellant redeemed the property from appellee from under the sheriff’s sale theretofore made of the property, and it was agreed that no claim would be made for rent after the period of redemption.”
There is no evidence of the above important facts in the record, but appellant in his reply brief, presumably referring to the above, uses the following language:
“As a matter of fact, a stipulation is filed showing the period for which rent can be claimed, and of course, when Mr. Wasson later on redeemed the property from the execution sale, he had the right to the possession and rents.”
It will be taken as a fact that a stipulation was filed as stated, and that appellant redeemed the property from the sale under execution on the 12th day of April, 1915.
“Statements of fact made by counsel in a brief, if undisputed, can be considered by us the same as an admission made on the trial of the case.” Territory v. Board of County Commissioners, 13 N. M. 89, 79 Pac. 709.
‘'The sheriff’s sale under which Shaw claims title was made May 18, 1878. On the 14th day of February, 1879, plaintiff deposited with the clerk of the court an amount sufficient to redeem the land from the sale. It will be remembered that the deed was made up on the day of sale, and the right of redemption denied on the ground that defendant Henckley had appealed the case wherein judgment was rendered to -the Supreme Court. Plaintiff, having made the deposit of money to redeem the land, cannot set up an equity under the original contract for the acquisition of town property to defeat the sale. By her effort to redeem from the sale she admits that it was valid, and that the 'land was subject to the judgment against Henckley. We are therefore relieved from the duty of considering’ her claim that the land was not subject to sale upon the judgment.” Thayer v. Coldren, 57 Iowa, 112, 10 N. W. 301.
In the case of Payment v. Church, 38 Mich. 777, it appears an execution was issued on an irregular judgment, and levied on certain property. The execution debtor, thinking the sale would be valid, requested the substitution of other property, which was sold in lieu of the property levied on. IJpop replevin to secure possession. of the property so sold, the court said:
“The plaintiff knew that a judgment had been rendered against him and others, and that the property was being sold to satisfy the judgment. He apparently took no steps to ascertain whether the proceedings had been regular and a valid judgment rendered or not. If irregular, he * * * could have waived the irregularity, and this he might do by action as well as by words, and the effect upon the defendants would be precisely the same whether he knew of the defective proceedings previous to the sale or not. We think the court did not err in rejecting this testimony.”
“Where a sheriff’s sale is void” by reason of failure to appoint appraisers, “the judgment debtor may, if he chooses, waive the invalidity of the sale, treat the sale as valid, and make it valid by suing the sheriff” on his bond. De Jarnette v. Verner, 40 Kan. 320, 19 Pac. 669.
“The rule is well recognized that the formalities required to be observed in the conduct of execution sales are designed for the .protection and benefit of those interested in the property and its proceeds, and may be waived by their common consent; and the parties interested also by their acts may estop themselves from attacking the validity of the sale.” 17 Cyc. 1269; Richey v. Merritt, 108 Ind. 347, 9 N. E. 368.
“Errors and irregularities must be corrected by a direct proceeding. If not so corrected, they cannot be made available by a collateral attack. Hence an execution sale cannot be collaterally avoided because * * of irregularities or deficiencies in the advertisement, * * * nor for defects in the levy. * * If the sheriff’s return fails to state whether or not the land was appraised before it was sold, the presumption, in the absence of any other evidence on the subject, must be indulged that the sheriff did his duty in regard to such appraisement.” 3 Freeman on Executions, § 339.
If there was error in the admission of these documents in evidence, which we do not decide, it was harmless, as appellee’s title was sufficiently proved without them, and there was no proof on part of appellant of any irregularity in the proceedings to sell the property.
The' admission in evidence of certain affidavits tending to prove the regularity of the sale was assigned as error, and such is probably true; but the presumption that the sale was regularly made in the absence of proof to the contrary, renders such error harmless. Appellee’s title was proved completely without reference to such affidavits.
We find upon examination of the record that there is substantial testimony to support the findings and judgment of the court. It was unnecessary to 'prove a forcible entry; proof of an unlawful detainer was sufficient. There was evidence to the effect that during the time mentioned the doors were all locked or hooked, and possession could not have been obtained without the use of force; that defendant claimed to be the owner of the property; that the building was being used by him for storage purposes; that a few days later he rented it, and collected the rents for some months. From these facts the court might well infer he was in possession and detaining the property unlawfully, if he was served with the proper notice to quit and failed to surrender the premises. Freeman on Executions, § 350. The remaining in possession after execution sale gave the right of action under the statute. Code 1915, § 2384. The evidence is conflicting as to whether or not a sufficient notice was served; but there is substantial evidence, though not very satisfactory, that the notice was served July 30th, that it was signed by the plaintiff, and that it complied with the statute as to contents. The admissions in the brief quoted herein, together with other evidence, is sufficient basis for the damages. There was proof that the rental value was $30 per month, and testimony from which the court could infer that defendant was in possession from July 29, 1915, to April 12, 1916, the date it was redeemed, and double rental value was allowed from this time.
Finding no substantial error in the record, the judgment of the district court should be affirmed; and it is so ordered.
