22 Colo. App. 257 | Colo. Ct. App. | 1912
Considering the objections to the sheriff’s deed, arising out of claimed irregularities in the levy of the execution and the conduct of the sale thereunder, it will be observed that the deputy sheriff, who appears to have had the levy and sale in charge, was dead at the time of the trial. The facts, with respect to the proceedings under the execution, depend upon the testimony of the appellee, and of Victor H. Miller, who was the attorney for the plaintiff in the
"It has generally been held that it is not essential to the validity of the levy that the officer should give the debtor notice before making the levy, unless service of the writ is required by statute, even though the debtor has the right to designate which class of property shall be first taken,” etc. 11 Am. & Eng. Enc. of Law, 650. A different rule, however, has prevailed in Illinois from an early period. See cases cited in 11 Am. & Eng. Enc. of Law, 650, note 2. Section 2539, Mills’ Ann. Stats. (3608, R. S.), above quoted, so far as it relates to levying upon the land on which the defendant resides, more closely resembles a similar provision of the laws of the state of Illinois, existing both before and after the year 1861, than any to which our attention has been called; and it is reasonable, therefore, to consult the decisions of the Illinois courts, in arriving at a proper construction of our statute. The Illinois statute of 1845 provided: The plaintiff may elect on whát property of the defendant he will have his execution levied, except the land on which the defendant resides, and Ms personal property, which shall be last taken on execution.” With
‘ ‘ The failure to give the defendant notice of the levy of a writ, or of the time when his property will be offered for sale thereunder, is a mere irregularity, which he waives if he does not urge it in due time, and this urging must ordinarily be by some attempt to prevent the sale before it takes place, or to vacate it afterward and before a conveyance to the purchaser.” 2 Freeman, Exec., sec. 285.
Appellant had no interest in the judgment against the appellee, and had nothing to do with any of the proceedings thereunder prior to the date of the sale. "Whatever may have been the nature of
It appeared that, on the day of the sale, the deputy sheriff telephoned to Miller, who was in Cripple Creek, that he could find no bidders for the property, and asked Miller what he should do. After consulting with his wife, who was the secretary of the appellant, Miller telephoned the deputy to bid $100 and no more for The Victor Investment Company.” Miller did not know who was present at the sale, or whether anyone was there present besides the deputy sheriff; but the latter informed him that there were no bidders. This was all the proof offered, concerning what occurred at the sale. It is strongly contended, on behalf of the. appellee, upon this testimony, that the sheriff undertook to act as agent for the appellant, in bidding at the execution sale, and that that fact alone should avoid it. On the other hand, appellant’s counsel argue that there was no impropriety in receiving the bid of $100 over the telephone, provided that the officer made public outciy of the bid, at the place of sale, before striking off the property to appellant. Ve think that, up to this point, the weight of authority sustains the position of. the appellant. There seems to have been no intention to confer discretionary authority upon the sheriff to bid for the appellant, but the amount of the bid-was definitely fixed at $100 and no more. In these circumstances, it could not be important whether the bidder was present at the place of sale, or communicated his bid over the telephone.
In Wenner v. Thornton, 98 Ill., 156, 169, it was said:
*267 “Respecting the point, that Houtze acted as the agent of Wenner in purchasing, as well as the agent of the court in selling, the land, all there is of that is, that it appears that it being impossible for Wenner to attend the sale, he sent by Houtze on the morning of the sale a bid for the land of the sum of $4,596, and Houtze struck off the land to Wenner for that sum. We think that where there was no more of an agency exercised than appears here, it is not ground for setting aside a sale. The bid sent appears to have been a definite and fixed one, without any discretion in Houtze to vary it. Wenner simply gave the trustee the bid that he was willing to make. This court gave sanction to such a transaction in Dickerman et al. v. Burgess et al., 20 Ill. 266, a case of a sheriff’s sale under execution upon a bid sent to him by letter. The court say: ‘Nor do we mean to be understood as objecting to receiving a bid by letter — but the officer must cry the bid, and if there be no advance on it, he would be justified in selling at the bid. The debtor has a right to insist upon all the forms.’ ”
See also 2 Freeman, Exec. (3rd ed.), sec. 292; Brannin v. Broadus, 94 Ky., 33.
The rest is not so easy, however, since there was no direct proof that the officer did or did not cry the bid communicated- by telephone. Counsel for appellant insist that the presumption must be indulged that the officer did his duty in the premises, and that the bid was duly cried, while appellee’s counsel assert with positiveness, apparently born of conviction, that the burden of showing a fair public sale devolved upon the appellant. As to this, it may be said that the execution of the sheriff’s deed to ap
The fact that Miller acted as attorney both for the execution creditor and the purchaser at the sale was not a matter which, in itself, affected any right of the appellee. Miller did'not represent the latter, in any aspect, and owed him no direct duty. If it was Miller’s duty to notify the judgment creditor of the levy and sale, it was not one on which the appellee had a right to or did rely. There was no evidence to justify the assumption that it was Miller’s intention, at any time prior to receiving the telephone message from the sheriff, on the day of the sale, to bid on the property, either for himself or for the appellant.
It would be more satisfactory, as a matter of feeling, if we were able to reach a different conclusion in this ease, but we have no right to determine
Reversed.