Wright v. Young, 6 Or. 87

Wright v. Young

6 Or. 87 | Or. | 1876

By the Court, Shattuck, J.:

It is conceded by the appellant’s counsel that the respondents have a good title to the lands in controversy, if the execution sale under which they claim is valid.

The circuit court found that successive executions were issued on the judgment against the appellants’ ancestor, and that personal property in amount sufficient to satisfy the judgment had been levied on; but that the levies were released and the property restored to the parties entitled to it. So that, in fact, nothing was made out of those levies. It does not appear from the evidence accompanying the bill of exceptions, that the defendants in the execution were deprived of their property, or lost anything whatever by reason of these levies, or by reason of any misconduct of the execution plaintiff or of the officer.

The alleged loss of some of the cattle levied on cannot, upon the evidence offered, be fairly attributed to the levy. They were released from the levy and returned to the pasture or range whence they were taken, and after that were lost. In such case, there being no loss to the debtor by reason of the levy, we hold that the mere levy on the personal property, it being subsequently returned, is not a satisfaction of the judgment, and furnishes no valid objection to the issue of another execution on the same judgment.

The execution on which the real property was sold, was not void upon its face because it commanded the sheriff *91“to levy upon tlie real estate, goods and chattels of” the defendants, instead of directing a resort to the personal property and then a levy on the realty. It was informal, but it had the substance of all which the statute requires. It was not invalidated, because two executions of the same date, upon the same judgment, and of the same tenor, were issued to the sheriff of the same county. Such a proceeding was irregular, and might have been taken advantage of by a motion to quash; but the return of the officer shows that he received one writ, and executed it in due form and manner; and that the other was returned to the clerk without anything further or different being done with it. The failure of the appellants’ ancestor to object at the time to this alleged irregularity, ought to be deemed a waiver of all objections on this ground.

But the whole ground and objection to this sale has been covered and passed upon by the proceedings found by the court below to have been had at the time of the delivery of the deed by the sheriff. The twelfth finding shows that after the time for redemption had expired, the sheriff who made the sale executed a deed to the purchaser of the property sold, and submitted the same to the circuit court for Douglas county, and that on the fourteenth day of May,. 1863, said court approved the deed, and confirmed the sale. What the evidence was which was introduced before the court below on this point, the bill of exceptions fails to disclose. It must be presumed to have been legal evidence, and that no error was committed by admitting it. It is claimed, however, that this execution sale having been made on a judgment and process of the county court, the proceedings should have been returned, and the deed submitted for approval and confirmation to that court, and not to the circuit court, and that in any view of that point the deed is incomplete and incompetent as evidence, because the court did not indorse its approval in the deed as required by statute. (Stat. 1855, p. 125, sec. 28.)

The constitution of the state (sec. 7, art. xviii), continued- all the laws of the territory in force, which were not inconsistent with the constitution. By construction and *92uniform practice the jurisdiction and practice of the territorial district court were deemed transferred to the circuit court, and in the territorial statutes, compiled and published in 1855, were recoguized as the law of the state regulating and-controlling the practice and decisions of the circuit court.

Those statutes provided as above quoted that a sheriff, in case of a sale of real property and no redemption, should execute a deed and submit it to the district court for approval. When the circuit court superseded the district court, such deeds whether made on a district court, a circuit court, or a county court execution, were submitted to the circuit court; the above provision of law being the only one in force relating to the approval of sheriff's deeds. Such, we understand, was the practice acquiesced in by the profession, and permitted by the courts, till the change of the laws, June 1, 1863.

We think it was a correct practice. The subject-matter of the proceeding was within the general jurisdiction of the circuit court, and there being no law directing the county court to exercise the authority, it fell within what may be termed the residuary jurisdiction of the circuit court provided by sec. 9, art. vii, of the constitution: “All judicial power, authority, and jurisdiction not vested by this constitution, or by laws consistent therewith, exclusively in some other court, shall belong to the circuit court.”

The failure to indorse the approval on the deed does not render the deed ineffective. We conclude from the finding that the circuit court in 1863 did review the proceedings concerning the sale, and approved and confirmed them; which was the substantive thing to be done, and, as before said, we must presume that the court below found such decision and approval expressed in some of the modes in which a court expresses and preserves its orders. The neglect to comply with the mode of approval' directed by the statute was at most only an irregularity, and not one affecting any substantial right. The statute provides, and this court has repeatedly held that an approval of the sale *93by the court is conclusive upon all questions arising on the proceedings concerning the sale, that is upon all matters occurring after judgment, and prior to the order of confirmation. And we repeat the ruling in this case and hold that the objections to the sale in question in this case must be deemed disposed of by the order of approval and confirmation of sale; that the appellant’s ancestor slept upon and waived his right, if he had any, by neglecting to make timely objections to the confirmation, and his heirs cannot now be heard to complain of irregularities.