Coghlan v. City of Boise

• Decision Date: 06 February 1923
• Citation: 212 P. 867,36 Idaho 613
• Parties: MAY BELLE COGHLAN, Appellant, v. CITY OF BOISE, a Municipal Corporation, Respondent
• Court: Idaho Supreme Court

212 P. 867

36 Idaho 613

MAY BELLE COGHLAN, Appellant, v. CITY OF BOISE, a Municipal Corporation, Respondent

Supreme Court of Idaho

February 6, 1923

REAL PROPERTY-SHERIFF'S SALE-ACTION TO SET ASIDE-RULE AS TO SALE EN MASSE-QUIETING TITLE-CROSS-BILL FOR AFFIRMATIVE RELIEF-MODIFICATION OF JUDGMENT.

1. A judgment debtor, being present at an execution sale of real property, with the right under the statute to direct the order in which such property shall be sold, who makes no request of the officer as to the order in which he desires the property sold, cannot thereafter be heard to complain that it was sold en masse, no bids having been received for lots and parcels separately offered.

2. The sale of separate parcels of real property en masse in disregard of C. S., sec. 6924, is not void, but only voidable and subject to be set aside on timely and proper application and a sale en masse is not prohibited by said section where the lots or parcels cannot be separately sold. And while this rule is controlling and should be strictly followed, it cannot be held to apply where each known lot or parcel is first separately offered for sale and no bids are received for said lots or parcels thus offered. Known lots or parcels may then be offered for sale and sold as a whole, and such sale will be upheld unless other reasons appear for avoiding the same.

3. In an action to quiet title, where the defendant relies upon title in himself, a cross-complaint is not necessary. But where the defendant desires title quieted in himself, as against the plaintiff, it is necessary that he file a cross-complaint.

4. This court has the power to modify a judgment, and to direct that proper judgment be entered in the trial court, but this court will not direct the modification of a judgment in the lower court where such corrected judgment would not change the legal status of the parties with respect to the action.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action to quiet title. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

P. E Cavaney, for Appellant.

Where land levied upon by fieri facias is divided into distinct parcels it must be sold in that way. (17 Cyc. 1249; Ollis v. Kirkpatrick, 3 Idaho 247, 28 P. 435; City of San Francisco v. Pixley, 21 Cal. 56; Cohen v Menard, 136 Ill. 130, 24 N.E. 604; Brown v. Duncan, 132 Ill. 413, 23 N.E. 1126; Catlatt v. Gilbert, 23 Ind. 614; Whitney v. Armstrong, 32 Iowa 9; White v. Robert, 112 Ky. 788, 66 S.W. 158; Jackson v. Newton, 18 Johns. (N. Y.) 355.)

Demand on sheriff by the defendant to sell real property according to law not necessary (State v. Leach, 10 Ind. 308; Reed v. Diven, 7 Ind. 189.)

It is the duty of the officer to sell the property so as to produce the largest price and the least injury to the debtor. (17 Cyc. 1251.)

Where execution has been levied on detached parcels of land, the sale of the whole in one lot for one bid after the offer in parcels has failed to bring bidders is not allowable, this rule being based on the grounds that the owner cannot thus be deprived of the statutory right to redeem any one of the parcels without being compelled to redeem the others. (Udell v. Kahn, 31 Mich. 195; Lee v. Mason, 10 Mich. 403; Ollis v. Kirkpatrick, supra.)

Offering three tracts together after offering three separate tracts, having received no bids, was held to invalidate the sale on the theory that the sheriff should have offered two of the three together. (17 Cyc. 1252; Douthett v. Kettle, 104 Ill. 356; Cohen v. Menard, supra; Phelps v. Canover, 25 Ill. 309; Morris v. Robey, 73 Ill. 462.)

The rule in Tennessee is that the sale in lump is absolutely void. (Jaques v. Walters, 2 Lea (Tenn.), 116; Mays v. Wherry, 2 Baxt. (Tenn.) 133; Winter v. Burford, 6 Cold. (Tenn.) 328.)

J. M. Lampert and B. W. Oppenheim, for Respondent.

In an action to quiet title, where a defendant relies upon title in himself, a cross-complaint is not necessary. (Bacon v. Rice, 14 Idaho 107, 93 P. 511.)

The mere fact that lands are sold in gross and not in lots is not of itself a sufficient ground for setting the sale aside. There must be some attendant fraud, unfair dealing, or abuse of confidence, in order to obtain the aid of a court of equity to divest title so acquired. (Miller v. Trudgeon, 16 Okla. 337, 8 Ann. Cas. 739, 86 P. 523; Thomas v. Thomas, 44 Mont. 102, Ann. Cas. 1913B, 616, 119 P. 283; Hudepohl v. Liberty Hill Water etc. Co., 94 Cal. 588, 28 Am. St. 149, 29 P. 1025; Riddell v. Harrell, 71 Cal. 254, 12 P. 67; 24 Cyc. 25.)

A sale en masse is not necessarily void, nor even irregular. (Bechtel v. Wier, 152 Cal. 443, 93 P. 75, 15 L. R. A., N. S., 549.)

The weight of authority is that where the statutory requirements have not been observed, the sale is voidable merely and not void. (Willard v. Finnegan, 42 Minn. 476, 44 N.W. 985, 8 L. R. A. 50; Shelton v. Franklin, 224 Mo. 342, 135 Am. St. 537, 123 S.W. 1084; Thomas v. Thomas, supra.)

Where land is first offered in lots and no bids are received, it may then be sold en masse and the sale will be upheld, unless other reasons appear for setting it aside. (Ollis v. Kirkpatrick, 3 Idaho 247, 28 P. 435; Glenn v. Bechtel, 152 Cal. 16, 93 P. 78; Bechtel v. Wier, supra; Copper v. Iowa Trust etc. Bank, 149 Iowa 336, 128 N.W. 373; Anglo-Californian Bank v. Cerf, 142 Cal. 303, 75 P. 902; San Francisco v. Pixley, 21 Cal. 56; Connick v. Hill, 127 Cal. 162, 59 P. 832; Marston v. White, 91 Cal. 37, 27 P. 588; 23 C. J. 634, sec. 590.)

Where separate lots in a block are contiguous, and are owned by a single individual, they may properly be assessed as one parcel. If so assessed, a sale of them in bulk is, in effect, a sale of a single parcel. (Houghton v. Kern Valley Bank, 157 Cal. 289, 107 P. 113; 37 Cyc. 1344, 1345.)

As the rule requiring a sale in parcels is intended for the benefit of execution defendant, compliance with it may be waived by him, and such waiver may be implied from his acquiescence in the sale or from his delay in objecting thereto. (23 C. J. 635, sec. 591; Hudepohl v. Liberty Hill Water etc. Co., supra.)

By being present at the sale and failing to make any objection, defendant waives any irregularity in selling en masse. (O'Bryan v. Davis, 103 Ala. 429, 15 So. 860.)

WM. E. LEE, J. Budge, C. J., and Dunn and William A. Lee, JJ., concur. McCarthy, J., did not sit and took no part in the opinion.

OPINION

WM. E. LEE, J.

--This action was instituted for the purpose of quieting title to the east four feet of Lot 4, Block 55, Original Townsite of Boise City. In 1913, legal title to Lot 4, including the strip of ground in question, and Lots 2, 3, 5 and 6, stood in the name of Sarah Bowers, the mother of appellant, and it was assessed for taxes for that year to her. The tax so assessed was not paid and became delinquent. A delinquency certificate was subsequently issued to Ada county, and was thereafter assigned to W. E. Johnston, defendant in the court below, who commenced and prosecuted to final judgment an action to foreclose the same. In the complaint and throughout the foreclosure proceedings the description of the property as it appeared on the assessment-roll was followed. The appellant appeared in the foreclosure suit, but did not answer. The lots were sold by the sheriff to satisfy the judgment and were purchased by Johnston to whom a sheriff's deed to the property was thereafter delivered.

Subsequent to this appeal, Johnston's title was acquired by the city of Boise, and, upon stipulation, the city of Boise has been substituted as respondent.

Prior to the commencement of this action in the district court, Sarah Bowers conveyed the lots to appellant, and prior to the expiration of the period of redemption appellant attempted to redeem this four-foot strip by offering $ 500 to the sheriff and Johnston, respectively, each offer being refused. This sum was not sufficient to redeem the entire property sold.

Appellant contended in the lower court that the east four feet of Lot 4 was separately assessed for taxes in 1913, and that the sheriff in the foreclosure sale did not offer for sale the said four feet, nor did he offer the said property in the smallest known piece or parcel of land as required by C. S., sec. 6924. In support of her contention, appellant put in evidence the judgment-roll and the return of the sheriff in the foreclosure sale. Among other things, the return shows the following:

"I first offered at public auction said property by lot, each singly and separately, and no bid being made for said lots singly or separately as so offered, I then so offered all and singular, the said property in one parcel, and sold the same at public auction sale to W. E. Johnston, the plaintiff who was the highest bidder therefor. . . ."

There is in the record no evidence whatever that this strip was in fact a separate parcel at the time of the sale, to wit, May 13, 1916. In 1913, 1914, 1915 and 1916, the entire property was assessed as Lots 2, 3, 4, 5 and 6, although after the assessment was made in 1915 it seems that some change was made in the assessment of Lot 4, and in 1917 the strip was separately assessed. On September 8, 1915, subsequent to the 1915 assessment, Sarah Bowers conveyed the identical property to appellant, as Lots 2, 3, 4, 5 and 6. It is not, therefore, reasonable to conclude that the strip in question at the time of the sale constituted "a known lot or parcel."

In the absence of any evidence that, at the time of the sale, this four-foot strip was, in the language of the statute, "a known lot or parcel," the sheriff was not required to first offer for sale the east four feet, the west four feet or any...