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Boyd, 2 Story (U. S.) 605; Sheldon gage. State ex rel. Jessup v. Milligan, Sub., $$ 38, 39; Davis v. Gaines, 104

106 Ind. 109. U.S. 385, 405

In Texas, the execution of a mortgage In Texas, it is held, in a recent case, on chattel property cannot affect the that a purchaser at a sheriff's sale, who right of a creditor of the mortgagor has paid money on his bid which dis- to levy upon it and sell his interest uncharges the judgment, and received a der execution; the purchaser would buy defective sheriff's deed, may be subro- subject to the mortgage lien, having gated to the lien of the original judg- notice thereof. If after purchase the ment, and his right of action does not rights of the lien holder are jeopardized, depend on his possession. If in posses- he may sequester the property in a suit sion, he cannot be disturbed in it by the against the mortgagor, and make the original judgment debtor, until the purchaser under execution a party money paid by him in discharging the Sparks v. Pace, 60 Tex. 298. And in judgment has been refunded. Jones v. the same State, where an appeal is taken Smith, 55 Tex. 383. See also Mayes v'. under article 1493, Pasch. Dig., by the Blanton, 67 Tex. 246.

provisions of which execution may issue Right to Subrogation Denied.-Rich- and property be seized, but no sale can mond v. Marston, 15 Ind. 136; Nowler be made pending the appeal, if neverv. Coit, i Ohio 518; s. C., 13 Am. Dec. theless the officer sells, the purchaser at 640; Salmond v. Price, 13 Ohio 368; this void sale is entitled to be refunded Bishop v. O'Conner, 69 Ill. 431;

Cham- the purchase money, the same having bers v. Jones, 72 Ill. 279; Kinney v. been applied to the satisfaction of the Knoebel, 51 Ill. 112.

judgment. Burns v. Ledbetter, 56 Tex. Rights and Remedies of Purchasers 282. Generally.-In Maryland, under $$ In South Carolina, a purchaser at 1 and 2 of art. 83 of the code, relat- sheriff's sale may sue for the recovery ing to the seizure and sale of equitable of the land purchased, assailing for estates under execution, and the rights fraud a prior conveyance by the judgof purchasers at such sales, if the equit- ment debtor, and in the same action able title be one which includes posses- ask judgment that the prior deed be set sion of the property, there can be no aside. Burch v. Brantley, 20 S. Car. doubt that the writ of habere facias 503. And one who purchases land sold possessionem is applicable to give the under her execution for less than the purchaser possession. Deakins v. Rex, amount due, but fails to receive the

sheriff's deed, is entitled, nevertheless, In Pennsylvania, where one pur- to assert her equitable title to such land chases property at sheriff's sale under a in an action brought for its partition, to levari facias issued on a judgment ob- which action she is inade a party detained on a mechanics' lien, filed under fendant. Small v. Small, 16 S. Car. 64. the provisions of the act of June 16th, Where, under a judgment on con1836, Pamph. L. 696, he may institute structive service, certain lands were the summary proceedings provided by found to belong to the debtor, and were the act of June 16th, 1836, Pamph. L. subjected to the payment of the judg780, and its supplement of May 24th, ment, and a sale was had and the lands 1878, and thereby recover possession of sold to a bona fide purchaser, held, that the premises. Walbridge's Appeal, 95 he was entitled to protection, although Pa. St. 466.

afterwards the judgment was vacated In Indiana, a purchaser at sheriff's and set aside. Keene v. Sallenbach, 15 sale, from which redemption has been Neb. 200. made under the statute, is not entitled A purchaser at an execution sale is in ejectment to recover possession upon not an "aggrieved party” within the the ground that he had redeemed from meaning of $ 693 of the California a sale made upon a senior mortgage. Code of Civil Procedure, which preHis right as such redemptioner is not scribes a penalty for selling real propto possession of the lands, but to a lien erty without notice, recoverable by the thereon for his redemption money and party aggrieved. Kelley v. Desmond, interest, which he may enforce by suit 63 Cal. 517. for its recovery. Rice z. Puett, si Ind. On bill by the holder of a sheriff's 230. And the purchaser, at a consta- deed, made to him as assignee of the ble's sale of mortgaged personal prop- certificate of purchase, to set aside cererty, is not entitled to possession unless tain deeds made by the defendant in the he complies with the terms of the mort- judgment under which the sheriff's sale

60 Md. 593

lil. 275

5. Liabilities of Purchaser.- Where the purchaser at an execution sale fails or refuses to pay his bid, an action will lie against him by the sheriff in his official capacity to recover the amount of the bid: 1 or the bid may be ignored and the property resold. If, upon the second sale, the property brings less than the amount bid at the first sale, the difference may be recovered from the defaulting bidder.3 was made, as clouds upon the title, it is the purchaser before suit. McKee v. not essential to the relief sought for the Lineberger, 69 N. Car. 217; Hunt z'. complainant to prove affirmatively that Gregg, 8 Blackf. (Ind.) 105. But comhe paid value for the certificate of puro pare Holdship v. Doran, 2 P. & W. chase assigned to him, and upon which (Pa.) 9. his deed was made. Until his deed Where the property of a corporation should be impeached, in some mode under mortgage was levied on under known to the law, it is prima facie various other claims, and the company sufficient as a basis to the relief sought prepared to arrest the sale by affidavits by such a bill. Shelton v. Blake, 115 of illegality, but an agreement was

effected by the company and creditors A, a married woman, joined with her represented, under which the objection husband in a bond with warrant of at- was to be withdrawn, the equity of re torney, and mortgage of her real estate, demption of the property to be sold and to B, who entered judgment on the bid in for the creditors, at a stated price, bond against both obligors, and under no money was to be paid except the an execution thereon levied on said real costs, and the company was to have a estate and bought it in at sheriff's sale. specified time in which to redeem the The amount bid by B at the sale was property, or on failure to do so, the claimed by B and also by other cred creditors were to be interested in it in itors of A's husband, and the sheriff, proportion to their claims, and the having filed a special return, an auditor sheriff assented to this arrangement, was appointed who awarded the same and the property was bought by the to B, who exchanged receipts with the agreed bidder for the creditors, this did sheriff for the purchase money. Sub- not give other creditors the right to sequently B issued a scire facias on the seek redress directly from the bidder mortgage. Held, that the defendants at the sale, by bill in equity, for the were entitled to a credit for the sum bid purpose of compelling him to pay the by and awarded to B at the said sheriff's amount of the bid, especially where the sale

, although he did not obtain a good complainants had postponed all action title, owing to the fact that the bond of for more than two years, where the the married woman was void as against sheriff had gone out of office, and her. Wells v. Van Dyke, 106 Pa. St. where the other property of the defend.

ant had, in the meantime, been sold The right of an execution defendant and otherwise disposed of. Cureton v. to use a patented machine passes with Wright, 73 Ga. 8. the machine to the purchaser at sheriff's 2. Durnford v. Degruys, 8 Mart. sale. Wilder v. Kent, 15 Fed. Rep. 217. (La.) 220; s. c., 13 Am. Dec. 285; Bis

1. Bell v. Owen, 8 Ala. 312; Robin- bee v. Hall, 3 Ohio 449; Roberts v. son v. Garth, 6 Ala. 204; s. C., 41 Am. Westbrook, Coldw. (Tenn.) 115; Dec. 47; McKee v. Lineberger, 69 N. Herman on Executions, 325, 0 211. Car, 217; Glenn v. Black, 31 Ga. 393; 3. This is the general rule, but the Jones v. Null, 9 Neb. 254; Chappell v. exact measure of damages seems to deDann, 21 Barb. (N. Y.) 17; Herman on pend somewhat on the circumstances Executions, 325, $ 211.

of each particular case.

See Girard v. Assumpsit is the form of action gen- Taggart, 5 S. & R. (Pa.) 19; Adams v. erally resorted to. See note to Mount McMillan, 7 Port. (Ala.) 73; Lamkin 9. Brown, 33 Miss. 566; s. C., 69 Am. V. Crawford, 8 Ala. 153; Glenn v.

Black, 31 Ga. 393. But in Roberts v. The purchaser remains liable even Westbrook, i Coldw. (Tenn.) 115, and though he may have assigned his bid. Grier v. Youtz, 5 Jones L. (N. Car.) Wimer ». Obear, 23 Mo. 242.

371, this rule is held not to apply to The officer should tender a deed to execution sales.

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Where the sale is made under a decree in chancery, the power of the court to enforce the contract of purchase is broader than in case of an ordinary execution sale. In addition to an action at law to recover the amount bid, or the deficiency upon a resale, the court of chancery may, upon motion, or proper application, (1) set aside the sale, release the purchaser, and decree a resale , or (2) ratify the sale and decree a specific performance of the contract, enforcing its order by attachment and commitment of the person of the purchaser for contempt; or (3) order a resale, holding the purchaser liable for any deficiency, and for the costs of the resale." 2

Judgment for the deficiency may be ratified, a rule may be taken against obtained upon motion, under the Šlis. the purchaser to show cause why he souri statute. Phillips v. Goldman, 75 has not paid his bid and completed his Mo. 686; Gray v. Case, 51 Mo. 463. contract. Anderson v. Foulke, 2 Har. See also in Indiana, Williams v'. Lines, & G. (Md.) 346; Harding v. Yar7 Blackf. (Ind.) 46.

borough, 6 Jones Eq. (N. Car.) 215; 1. These remedies exist, notwith Hill v. Hill, 58 I11. 239; Vance v. Fosstanding the more summary remedies ter, 9 Bush (Ky.? 389. Upon his fail. to which resort may also be had in ure to show cause, the court will order courts of equity. Townshend v. Simon, him to pay the purchase money and 38 N. J. L. 239. So an action at law may enforce this order by attachment.

maintained upon notes Brasher v. Cortlandt, 2 Johns. Ch. bonds given by the purchaser. Farmers' (N. Y.) 505; Lansdown v. Elderton, 14 etc. Bank v. Martin, 7 Md. 342; s. C., Ves. 512, and authorities last above 61 Am. Dec. 350, 352; Riddle r'. Hill, cited. In some jurisdictions this order 51 Ala. 224:

may be obtained upon motion merely. But a defaulting purchaser at sherift"s Ogilvie v. Richardson, 14 Wis. 157; sale is not liable to respond in damages Cazet v. Hubbell, 36 N. Y. 677. And for loss on resale of the property if it execution has been issued against the appears that under the first sale he property of the purchaser in some cases would have acquired a more valuable Blackmore v. Barker, 2 Swan. (Tenn.) title than that which passed to the pur 340; Atkinson v. Richardson, 18 Wis. chaser at the last sale, or that the terms 244. of the first sale were more advantageous The practice is similar where to the purchaser than those of the re- order for resale is sought. Matter of sale. Hare v. Bedell, 98 Pa. St. 485. Yates, 6 Jones Eq. (N. Car.) 212, 306; And in Tennessee, where a sheriff, un- Williams 2. Blakey, 76 Va. 254 der an execution, sells land and it is bid Schaefer v. O'Brien, 49 Md. 253. The in by a purchaser who fails to pay the order should direct the resale of the money, and he again sells at a less sum property at the risk and expense of the to another purchaser, the first pur- defaulting bidder. Hill v. Hill, 58 III. chaser cannot be held liable by the 239. judgment creditor for the difference in In North Carolina, the title is con the first and last bid. Harvey v. sidered in custodia legis until payment Adams, 9 Lea (Tenn.) 289.

of the purchase money. Fleming ?'. 2. Abridged from 2 Jones on Mort- Roberts, 84 N. Car. 532. See also as gages, Ø 1642, by Mr. Freeman in a to retention of title in Virginia and note to Mount v. Brown, 33 Miss. 566; West Virginia, Glenn v. Blackford. S. C., 69 Am. Dec. 369. See also Clark. 23 W. Va. 182; Long v. Weller, 29 son v. Read, 15 Gratt. (Va.) 288; Good- Gratt. (Va.) 347. win v. Simonson, 74 N. Y. 133; Milten- In Tennessee, judgment may be berger v. Hill, 17 La. An. 52; Shaefer taken and a resale ordered upon motion v. O'Brien, 49 Md. 253; Murdock's and without notice to the purchaser. Case, 2 Bland (Md.) 461; S. C., 20 Am. Munson v. Payne, 9 Heisk. (Tenn.) 672; Dec. 381; Stimson v. Mead, 2 R. I. Mosby v. Hunt, 9 Heisk. (Tenn.) 675. 541.

A purchaser who remains in posses. Mode of Procedure Generally.—After sion after a sale is set aside and the the hid has been accepted and the sale deed vacated is

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V. SETTING ASIDE AND RESALE.—Where justice requires it, and the rights of third persons have not so intervened as to prevent it, the court issuing the process or order of sale may vacate or set aside the sale for good cause shown. Indeed, it is said to be "the duty of all courts, when satisfied that sales made under their process are affected with fraud, irregularity or error, wilful disregard of the statutory regulations by the officer, whereby the rights of either of the parties interested are seriously affected, to set aside such sale upon a proper showing to the court under whose process the sale was made, and order a resale of the property."' Among the causes for which sales have most often been set aside are fraud, accident and mistake. Mere inadequacy of

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Green v. Jordan, S3 Ala. 220, s. C., 3 When Sale Will Be Set Aside.-In a Am. St. Rep. 711.

recent New Jersey case, where the See further to liabilities of complaint in the original cause prompurchaser and mode of ensorcing ised to notify the petitioner, who was bids, Woods Ellis (Va.), 7 S. interested in the property, of the time E. Rep. 852; Townshend v. Simon, and place of sale, and forgot so to do, 38 N. J. L. 239; Shinn v. Roberts, in consequence whereof the petitioner 20 N. J. L. 435;

S. C., 43 Am. Dec. did not attend, and the property was 636; Galpin v. Lamb, 29 Ohio St. 529; sacrificed, such sale was set aside. Pell Cobb v. Wood, 8 Cush. (Mass.) 228; v. Vreeland, 35 N. J. Eq. 22. So, in a Deaderick Watkins, 8 Humph. late Texas case, it was held that a (Tenn.) 520; Still v. Boon, 5 Sneed judgment creditor who, by reason of (Tenn.) 380; Williams v. Blakey, 76 the unusual hour at which an execution Va. 254; Mosby v. Withers, So Va. 82; sale is made and the inclemency of the Fleming v. Roberts, 84 N. Car. 532; weather, is prevented, without laches on Clarkson v. Read, 15 Gratt. (Va.) 288; his part, from being present to protect Cooper v. Borrall, 10 Pa. St. 491; Shar. his interest as a bidder against an inman v. Walker, 68 Ga. 148.

solvent judgment debtor, whereby, and 1. Herman on Executions 406, § because of few bidders being present, 249. This statement of the rule serves the property sold for less than its value to indicate generally the power, if not and less than the judgment, is entitled the duty, of the courts, and is sup- in equity to have the sale set aside. ported in its general scope by the au- Johnson v. Crawl, 55 Tex. 571. And thorities cited by Mr. Herman. See see for a like ling under a very simi. also Freeman on Executions (2nd ed.), lar state of facts, Weir v. Travellers'Ins. $ 308; Jarboe v. Colvin, 4 Bush (Ky.) Co., 32 Kan. 325. 70; King v. Platt, 37 N. Y. 155; Where, on enquiry at the office of the Rhonemus v.

Corwin, 9 Ohio St. 366; sheriff by the attorney of a defendant in Hopton v. Swan, 50 Miss. 545; Hilleary an execution, he is informed by a 5. Thompson, 11 W. Va. 113; Fix v. deputy in charge of the office that the Loranger, 50 Mich. 199; Kauffman v. sale of the property levied on, consist

Md.

240; Hudson v. Morriss, ing of three hundred and thirty-three 55 Tex. 595; Fleming r. Maddox, 30 shares of stock in a corporation, will lowa 239; Ewald v. Coleman, 19 Ind. take place at twelve o'clock on the day 66; and authorities hereinafter cited. of sale, and subsequently the sale is

2. See Seaman v. Riggins, 1 Green's made in mass at ten o'clock, in the abCh. (X. J.) 214; S. C., 34 Am. Dec. 200, sence of the defendant or his attorney, with note; Aldrick v. Wilcox, 10 R. I. and without their knowledge, and at a 405. 414; Wetzler v. Schaumann, 9 C. great sacrifice of the value of the propE Green (N. J.) 64; Campbell v. erty, such sale will be set aside, on Gardner, 3 Stockt. Ch. (N. J.) 423; s. timely application, on motion of deC., 69 Am. Dec. 598; Littell v. Zuntz, fendant. Am. Wine Co. v. Scholer, 2. Ala. 236; s. c., 36 Am. Dec. 415; 85 Mo. 496. Hoppock 7. Conklin, Sand. Ch. (N. When a purchaser of land at sheriff's Y.) 582; Cumming's Appeal, 23 Pa. St. sale induces others not to bid and thus 509; Allen 7. Clark, 36 Wis. 101. procures the land for less than it is

Walker,

worth, the sale will be set aside, and of two lots and occupied by two this will be done though the action is not dwelling houses, was sold as one parcel. instituted until after the year of re. it being determined that in fact the demption has expired. Lynch v. Reese, property consisted of but one tract or 97 Ind. 360.

parcel of land. Coolbaugh v. Roemer, Where two separate lots, of the value 32 Minn. 445. of $8,000, are sold on execution for $65, Where a judgment is rendered and en masse, without first offering them an execution issued against Rosina separately, a court of equity will inter- Coons, it is not sufficient reason for pose, if invoked in a reasonable time, setting aside a sale of real estate made and set the sale aside. Berry v. Lovi, on such execution that the right name 107 III. 612.

of the defendant is shown to be Rosina În Hughes v. Duncan, 60 Tex. 72, Kuhn. Kuhn v. Kilmer, 16 Neb. 699. where, without the knowledge of the Defects in the advertisement of the judgment creditor, in whose favor a sale by the sheriff, and in the notice judgment had been rendered, ordering given to the defendant in execution, are the sale of specific land, to which a lien mere irregularities, and do not furnish attached, execution issued under which good grounds for setting aside the sale the land sold for one-fortieth of its real without proof of consequent injury to value, the sale was set aside on proceed- the party complaining. Holly ý. Bass, ings instituted by injunction after the 68 Ala. 206. sale and before the payment of the sum Mere irregularity in making a judicial bid, it being shown that the sale was sale, when taken in connection with made in violation of an agreement be. gross inadequacy of consideration, will tween the debtor and creditor for in- not alone, as matter of law, be held a dulgence and both uniting in proceed. sufficient ground for vacating such sale, ings to set it aside.

in the absence of facts showing that the At an execution sale the defendant's irregularity conduced to the inadequacy property was bid off by the plaintiff at of the sum bid. Allen v. Pierson, 60 an inconsiderable sum, in pursuance of Tex. 604. an alleged fraudulent arrangement to In Alabama, the following distinction suppress competition among bidders. has been drawn: “When a sale of lands Held, in an action to impeach the title under execution at law is impeached, beacquired by plaintiff, that the sale cause of mere error in the process, or should be set aside and the parties on account of some error attending its placed in statu quo, without prejudice execution, the court from which the to the plaintiff's remedies from lapse of process issued has exclusive jurisdiction time since the sale. Currie v. Clark, 90 to set aside the sale; but, if fraud or il

legality attends the sale, or it has been In a foreign attachment suit, under followed by the execution of a conveythe provisions of chapter 151 of the ance casting a cloud upon the title, a code of Virginia, where the defendant court of equity has jurisdiction conhas not appeared or been served with a current with the court of law to set it copy of the attachment as provided in aside. If the judgment was in fact satsection 24, the giving of the bond re- isfied at the time of the sale under exquired by said section is a condition ecution, the court from which the proprecedent to the sale of the attached cess issued has undoubted jurisdiction property under section 23 of said chap- to set aside the sale; but, if the process ter. And where a sale is made with- is regular on its face, and the sale is out such bond having been given and followed by a regular conveyance to the confirmed, the decree confirming such plaintiff in execution sale will be reversed and the sale set chaser, the fact of payment resting in aside, and the purchaser at such sale is parol, a court of equity will intervene, not entitled to the protection of the at the instance of the defendant in 27th section of said chapter. Hall v. possession, set aside the sale, and canLowther, 22 W. Va. 570.

cel the conveyance as a cloud on the When Sale Will Not Be Set Aside.—An title.” Cowen v. Sapp, 74 Ala. 44. execution sale of real property will not See also upon this subject generally be set aside merely because sold for Herman on Executions 408, Š 250; 34 much less than its real value, there re- Am. Dec. 204, note;

RIGHTS maining a right of redemption after the PURCHASER, supra, this title. sale. Nor will it be set aside because In Pennsylvania, after a sheriff's sale the tract sold, being composed of parts has been confirmed, the purchase money

N. Car. 355.

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