Brock v. Berry

• Citation: 132 Ala. 95,31 So. 517
• Parties: BROCK ET AL. v. BERRY ET AL.
• Decision Date: 17 December 1901
• Court: Supreme Court of Alabama

31 So. 517

132 Ala. 95

BROCK ET AL. v. BERRY ET AL.

Supreme Court of Alabama

December 17, 1901

Appeal from chancery court, Morgan county; Wm. H. Simpson Chancellor.

Suit by Berry, Demoville & Co. against John L. Brock and others. Decree for complainants. Defendants appeal. Reversed in part.

D. W Speake and L. P. Troup, for appellants.

E. W Godbey, for appellees.

HARALSON J.

1. As to the liability of the sheriff for selling the property under the circumstances and conditions alleged, Mr. Freeman says, as to the proper notice of sale: "So far as the courts have spoken upon the subject, they have held that the selling of property under execution by an officer without previously giving the notice of sale required by the statute is such misconduct that the officer is no longer entitled to the protection of his writ. The result of this must be, that if sued in trespass, his defense cannot rest upon the process, nor can it be used in diminution of damages." 2 Freem. Ex'ns, p. 1659, § 286.

In Wright v. Spencer, 1 Stew. 577, 18 Am. Dec. 76, this court, touching this matter said: "A misfeasance is the improper performance of some act which might have been lawfully done. The defendant here [the sheriff] had the right to take and sell the property, but was bound to do it as directed by law. If, then, he sold without the legal advertisement, it was the improper performance of an act which might have been lawfully done, and he was, according to strict definition, guilty of misfeasance. By this he was dismantled of his protection, and made a trespasser from the beginning. There can be no question but that he was liable to the action of trespass." Nathan v. Shivers, 71 Ala. 121, 46 Am. Rep. 303; Hartshorn v. Williams, 31 Ala. 154.

Connected with this complaint, and interwoven with it, is the averment and proof, that the goods,--other than the soda fountain, which latter article was not mentioned at all in the advertisement of sale which was made,--were sold by the sheriff at a place other and different and remote from the place at which they were advertised to be sold. The result is, that, having regard to the purpose of an advertisement of sale, such as the law requires, the goods were sold without legal notice. Code, §§ 1905, 1906. It was the duty of the sheriff to have advertised the time and place of sale, and to have sold at the place designated in the notice. Certainly, it was a violation of duty, to advertise to sell at a designated place, and, afterwards, make the sale at another and remote place. 2 Freem. Ex'ns, §§ 290, 302; Crok. Sher. § 484.

Furthermore, the soda fountain was not present, with the other goods, when they and it were sold, but nearly a block away in the store where it was levied on, and not in view of the sheriff, bidders or those present at the sale. The sales of personal property under execution should always take place, at or near the place where the property is, when sold. Such sales must result in some, if not great sacrifice of the property, unless those present desiring to buy have opportunity to see and examine the property offered for sale. 2 Freem. Ex'ns, § 290, and authorities in note 4; Murfree, Sher. § 994; Crok. Sher. § 493; Andrews v. Keith, 34 Ala. 728; Foster v. Mabe, 4 Ala. 402, 37 Am. Dec. 749.

2. The evidence shows, that the property was sold in mass, including said soda fountain, or in what is called a "lumping sale," which, in a case of sale of personal property under execution, can rarely be justified. Crok. Sher. § 495; 2 Freem. Ex'ns, § 296; Pipe Works v. Williams, 106 Ala. 324, 18 So. 111, 54 Am. St. Rep. 51. The evidence tends to show, that by this character of sale, the property brought much less than it would have brought, if it had been properly offered in parcels.

3. The $36 for taking and typewriting the inventory of the goods, was properly decided not to be a legitimate expense charged by the sheriff in making the sale. Kahn v. Locke, 75 Ala. 332; Smith v. Huddleston, 103 Ala. 223, 15 So. 521.

4. It is said the complainants have no right to maintain this bill since they were strangers to the suits in attachment. That would be true, if they were mere intermeddlers. But they filed this bill, on April 6, 1898, to set aside an alleged fraudulent mortgage on the property conveyed by Cross to Mrs. Young, afterwards levied on by the said Troup and Brock, and, as incidental to the setting aside of the mortgage as fraudulent, and without disputing said attachment liens, if established, but allowing them to be paid, to hold the sheriff and the plaintiffs in attachments liable for the value of the goods, above the attachment liens, on account of their alleged violations of process. The filing of the bill, gave complainants a lien, if established, on the property from the date of its filing; and while they were not parties to the attachment proceedings, they show that as creditors of the defendant in attachment, they had rights dependent upon and growing out of the sale. If the sale had been properly conducted, as they claim,--said mortgage being set aside for fraud,--the property levied on would have sold for enough, to discharge the prior attachment liens, leaving a surplus sufficient to pay their debt, or the greater part of it, and this the evidence tends to show. Mr. Freeman says of persons occupying the attitude of complainants, "Persons not parties to the action may have rights dependent upon or growing out of the sale; and if so, ...