Dakota Inv. Co. v. Sullivan
| Decision Date | 22 May 1900 |
| Citation | 9 N.D. 303,83 N.W. 233 |
| Parties | DAKOTA INV. CO. et al. v. SULLIVAN et al. |
| Court | North Dakota Supreme Court |
1. An order of court confirming an execution sale of real estate is a final, appealable order.
2. Such order is in the nature of an adjudication, and cures all defects and irregularities in the proceedings, and cannot subsequently be attacked by motion in the case to set the same aside by reason of such defects and irregularities.
Appeal from district court, Walsh county; O. E. Sauter, Judge.
Action by the Dakota Investment Company and others against Timothy Sullivan and others. Judgment for plaintiffs. After sale on execution, J. W. Boeing moved to set aside the sale. W. J. Hewitt, the purchaser at the sale, appealed from an order setting it aside. Reversed.De Puy & De Puy, for appellant. Gray & McMurchie, for respondents.
On the 29th day of January, 1897, an execution was duly issued by the clerk of the district court of Walsh county upon a judgment theretofore duly and regularly entered in said court in favor of the Dakota Investment Company and against Timothy Sullivan. The judgment was dated October 25, 1889. Such proceedings were had under the execution that on March 15, 1897, the sheriff of said county sold certain real estate in said county that belonged to said Sullivan at the time of the entry of judgment, and upon which the judgment was a lien. The property consisted of four town lots,-two adjoining lots in one block, and two adjoining lots in another block. The lots in each block were sold to different purchasers. On the 16th day of March, 1897, the sale was duly confirmed. There is no claim made that there was any fraud used in obtaining this confirmation, or that there was any accident or surprise upon the part of any interested party. On July 8, 1899 (being more than two years after the order confirming the sale was entered), one J. W. Boeing, who had become interested in a portion of the land sold, as assignee of the sheriff's certificate of sale, gave notice of a motion to set aside the said sheriff's sale, and to cancel and annul the satisfaction of judgment theretofore entered, and to have the lien of the judgment re-established and another sale ordered. This notice was served upon the parties to the original action, the purchasers at the sheriff's sale and one William J. Hewitt, who held the record title to a portion of the land through conveyances from Sullivan. Hewitt alone appeared and opposed the motion. The relief asked in the motion was in part granted, and Hewitt appeals.
The first error assigned reads, “The court erred in entertaining a motion on the part of respondent to vacate the sale.” We shall rule the case upon this assignment. We first consider the grounds upon which the motion was based, and in doing so we must look at the grounds set forth in a prior motion made by Hewitt, as they are referred to and made the basis in part for this motion. When the judgment was rendered, section 5111, Comp. Laws, was in force, under which an execution could not issue upon a judgment after five years from its rendition, without leave of court; and this could be had only upon a showing that the judgment, or some portion thereof, remained unpaid. In other words, the law raised a disputable presumption of payment after five years. No leave of court was obtained in this case, although the execution was not issued until seven years after the rendition of judgment. This is urged as ground for setting aside the sale. But section 5111, Comp. Laws, was omitted from the Revised Codes of 1895, and at the time the execution was issued there was no limit thereon, save the life of the judgment. True, the five years from the rendition of the judgment had expired before section 5111, Comp. Laws, was repealed; but a disputable presumption is a mere matter or rule of evidence, in which a party can have no vested right, and which may be changed at the will of the legislature. The rule having been swept away, no leave of court was necessary when the writ issued. But, if necessary, its omission was an irregularity only, and did not render the sale void. In 8 Enc. Pl. & Prac. 360, it is said, “An execution issued after the lapse of more than a year and a day after judgment, without revival by scire facias, or after the lapse of the statutory period, without taking the steps prescribed by statute, is voidable merely, and not void, and all acts done under it before it is set aside are valid.” An immense array of cases is cited in the notes to support the text.
The other objections to the sale relate to the time for which the property was advertised, and the sale of two lots for a lump sum; that is to say, irregularities on the part of the officer conducting the sale. In this state, execution sales of real estate must be confirmed by the court whence the execution issued. Section 5539, Rev. Codes. As already stated, the sale was duly confirmed in this case, and this attack is made nearly two years after confirmation. In 12 Am. & Eng. Enc. Law, 219, it is said: “In confirming the sale,...
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