Utah National Bank v. Beardsley

10 Utah 404 | Utah | 1894

BaRTCH, J.:

Tbis is a proceeding by' motion of the administratrix of the estate of John.Broom, deceased, a purchaser of certain personal property at a sale under an execution issued out of the district court, to revive the judgment in her favor,, under the provisions of section 3450, Comp. Laws TJtah 1888. Upon the hearing of the cause the court rendered, judgment in favor of the administratrix, and against the defendant, Beardsley, for the sum of $9,568.37 and costs,- and ordered that the former judgment of the court, rendered in favor of the plaintiff and against the defendant herein, be revived, as prayed for. From this judgment the defendant appealed to this court.

It appears from the record that, at the time the property in question was purchased at the execution sale by John Broom, the deceased, one J. 0. Armstrong held a mortgage against the same, as security for a note, in the sum of $8,000, executed and delivered to him by the defendant, and that the officer who conducted the sale under the execution, neither before nor after such sale, paid to-Armstrong the mortgage debt, or offered to pay the same, or made any tender thereof. Afterwards, and while the property was in the possession of Broom, Armstrong brought suit to foreclose the mortgage, and Broom was impleaded with Beardsley in the foreclosure suit. In this suit the lien of the mortgage was held valid, and on appeal the judgment was affirmed by the supreme court of this territory, and of the United States. The property, having in the meantime been placed into the hands of a receiver, was again sold under execution upon the judgment in the foreclosure suit. Broom, having thus lost the possession of the property, then instituted these proceedings to revive the judgment in the original suit, and upon his death the administratrix of his estate was substituted as petitioner herein. Under this state of facts, it is insisted by counsel for appellant that the court erred in rendering the judgment appealed from, and referred to above.

The section of the statute under which these proceedings were instituted, as stated above, reads as follows: “If the purchaser of real property sold on execution, or his successors in interest, be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid with interest, from the judgment creditor. If the purchaser of property at an officer’s sale or his successor in interest fail to recover possession in consequence of irregularity in the proceedings concerning the sale, or because the property sold was not subject to execution and sale, the court having jurisdiction thereof, must after notice, and on motion of such party in interest, «or his attorney, revive the original judgment in the name, ■of the petitioner for the amount paid by such purchaser ¡at the sale, with interest thereon, from the time of payment at the same rate that the original judgment bore; and the judgment so revived has the same force and effect as would an original judgment of the date of the revival, and no more.” Counsel for appellant insists that this whole section applies to sales of real estate, and is not applicable to sales of personal property, because the revival is provided for only where the purchaser fails to obtain possession, and that no purchaser at, an execution sale of persona] property can ever fail to obtain possession, because, under sections 577 and 581 of the Code of .Civil Procedure, where such property is capable of manual delivery, it must be present at the sale, and the officer making the sale must deliver the property sold to the purchaser.

We are not inclined to adopt this view of the law. The first sentence of tbe section above quoted is, by its terms, confined to real property; but in tbe second sentence there is a departure from tbe language used in the first, and the -word “property” is employed, instead of “real property.” The word “ property ” is frequently used in ■our law relating to the execution of the judgment in civil actions as a general term denoting both real and personal property, and it is so defined in section 2997, Comp. Laws Utah 1888. We are of the opinion that such is its meaning, as used in the second sentence of the section under consideration; and we are also of the opinion that “the word “ possession,” as used in that sentence, means a possession coupled with a right of property, and not a ¡mere naked possession, such as might be acquired under a -void sale. The statute is remedial in its character, and should receive a liberal interpretation. Cross v. Zane, 47 Cal. 602. The law in question being applicable to sales of personal property, as we think it - is, the petition in this case appears to state a case within the statute. There having been no payment or tender of payment of the mortgage, which was a valid lien, before sale, the property was not subject to execution.' Comp. Laws Utah 1888, § 2806. Nor does the rule of caveat emptor apply in such a case as is shown by this récord. Nor do sections 577 and 581, above referred to, affect the operation of section 3450. The judgment is affirmed.

Meebitt, O. J., concurs.