Barnes v. Kerlinger

• Decision Date: 01 January 1862
• Citation: 7 Minn. 55
• Parties: COMFORT BARNES vs. JOHN M. KERLINGER.
• Court: Minnesota Supreme Court

7 Minn. 55

COMFORT BARNES vs. JOHN M. KERLINGER.

Supreme Court of Minnesota.

Error to district court, Scott County.

The complaint alleged a judgment against the defendant below (plaintiff here), an assignment of it to the plaintiff below, the issuance of execution, a levy upon and sale of real estate, bid in by the plaintiff (below), and failure of the sheriff to make or file a certificate of sale, a return by the sheriff of the execution satisfied, and prayed to have the satisfaction of the judgment vacated and a new execution issued. Defendant below interposed a demurrer to the complaint, which was overruled, and judgment entered thereon.

L. M. Brown, for plaintiff.

Geo. Bradley, for defendant.

EMMETT, C. J.

The facts stated in the complaint in this action do not, in our opinion, entitle the plaintiff to the relief asked for; nor do they justify or authorize the judgment which was rendered on the overruling of the defendant's demurrer. Such a state of facts might have been sufficient to induce the court to aid the plaintiff in obtaining the benefit of his purchase, by an order permitting him to supply the proper evidence thereof, or by compelling the officer to give and file the certificates provided for by statute; and also to modify the sheriff's return, and the entry of satisfaction of the judgment, so as to conform to the amount or sum actually realized by the sale; but the court was not justified in disregarding the sale altogether, and annulling the return of the officer and entry of satisfaction in toto. The sheriff, in making sale of the property, acted as the agent of both parties; and neither should be deprived of any benefit to be derived from the authorized acts of this officer, because of any omission to furnish the proper certificate thereof, unless he is in some way chargeable with the omission.

The sale having once been legally made, the purchaser is entitled to the property at the price agreed upon, how much soever it may since have increased in value; while, on the other hand, the judgment debtor or owner has an equal right to the benefit of the sum for which it was sold, however great the subsequent depreciation; and should the sheriff afterwards, for any cause, be unable or unwilling to furnish evidence of the official act of selling, we see no reason why the court, upon a proper showing, should not interfere to enable the party aggrieved to supply the defect by proofs other than that directed by the statute, or to...