Taylor v. Trulock

59 Iowa 558 | Iowa | 1882

Adams, J.

- execution0;18^ toionowde® p!anaof aiviS10U' Section 3088 of the Code provides that “at any time before nine o’clock a. m. of the day of the sale, the defondant may deliver to the officer a plan of divis*0XL °*' ^ lancI- levied on, subscribed by him, and in case the officer shall sell according to said plan so much of the land as may be necessary to satisfy the debt and costs, and no more.”

Tlie plaintiffs contend that in this case the officer was justified in disregarding the plan — -first, because the sale was upon special execution, and, second, because the plan was not sufficiently definite.

The first question presented then is as to whether the statute was designed to apply to sales on special execution. In support of the plaintiff? position that it was not, they cite Malony v. Fortune, 14 Iowa, 417. In that case Baldwin, Oh. J., referring to a corresponding provision in the Eevision, section 3319, and also sections 3267, 3268 o-f the Eevision respecting the duty of the officer to sell only so much of the property as is necessary to satisfy the debt and costs, said: “These provisions, we think, apply in sales under general executions.” But when we look into the case we see that the question involved did not necessarily call for a construction of section 3319 of the Eevision respecting the right of the execution debtor to demand that the sale should be made according to a plan of division offered by him.

In that case the decree provided that the mortgaged property should all be sold. The defendants appealed from the decree, insisting that it was error to order all the property to be sold, inasmuch as the debt and costs might perhaps be satisfied by a sale of a part. The plaintiffs, the appellees, insisted that the defendants were not prejudiced, because the officer was not bound to obey the decree so far as it provided for selling the whole property, unless necessary, and they gave as a reason why the officer was not bound to obey the decree that the statute expressly provided that the officer should sell only so much as should be necessary; and the statute relied upon consisted of the sections above cited, one of which pertained to the mode of selling where a plan of division is offered.

The learned judge said that these provisions apply to sales on general executions. He did not say that they could not apply to sales on special executions. His thought doubtless was, that the provisions have their special efficacy in sales on general executions, because in such sales the statute constitutes the officer's sole guide. In the case of a foreclosure, the decree and special execution should direct, the sale of only so much of the property as shall be found to be necessary. Where they do so direct, he need not look beyond them to find the same direction in the statute.

The real ground for holding the decree erroneous in Malony v. Fortune was that it contravened section 3661 of the Revision, and had the effect, as the court thought, to control the officer, and compel him to sell the whole property whether necessary or not. Conceding that this would be so, it does not follow that in the case at bar the execution defendants' might not require the officer to sell according to a jolan of division furnished by them. The decree' of foreclosure is not' set out, but we must presume that it conformed to section 3321 of the Code, and,-did'not direct absolutely the sale of the whole property. The special execution was -in the usual and proper form, directing the sale of so much as should be necessary. The argument, then, that section 3088 of the Code cannot be applied to this ease, because it would require the officer to disobey the decree, is not, in our.qpinion, sound; nor do we think that any objection, which is sound, can be urged to the application.

2 _, pl£m definiteness of> We come next to consider the objection that the plan of division offered is not sufficiently definite. The plan of division is shown for the most part by a plat. We cannot vei7 well set out a copy of the plat and go into a detailed examination of it. It refers to a portion of the land in a very general way as the north fifty acres of the timber land, also lot 1,-acres south of railroad etc. Toastranger the land described in the plan of division would not necessarily appear to be identical with the land mortgaged. But it is not,objected that it is not; and we have no doubt that to a person acquainted with the land the plan of division was easily intelligible, and that it was sufficiently certain in that it could be rendered certain.

No objection appears to have been made, nor is it shown to us that the officer, in the exercise of reasonable diligence to discharge his duty, could not have made a sale in accordance with the plan. We think that the court did not err in setting aside the sale.

Aeeiemed.