Danner v. Murnan

• Decision Date: 25 August 1920
• Docket Number: 4687
• Citation: 43 S.D. 289,178 N.W. 987
• Parties: J. H. DANNER,, Plaintiff and respondent, v. HARRY A. MURNAN, Defendant and appellant.
• Court: South Dakota Supreme Court

43 S.D. 289

178 N.W. 987

J. H. DANNER,, Plaintiff and respondent, v. HARRY A. MURNAN,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Gregory County, SD

Hon. William Williamson, Judge

#4687--Affirmed

W. J. Hooper

Attorneys for Appellant.

N. D. Burch

Attorneys for Respondent.

Opinion filed August 25, 1920; Rehearing denied November 6, 1920

POLLEY, J.

During the month of December, 1907, Harry A. Murnan, the defendant and appellant herein, commenced an action in the circuit court for Gregory county, against one Henry Lewis Hanson, but through mistake the defendant's name appeared as Henry C. Hanson, instead of Henry Lewis Hanson. On the 15th day of January, 1908, judgment was entered in said action in favor of plaintiff in the sum of $152.65. On that date the said Hanson was the owner of 120 acres of land in that county under the name of Henry Lewis Hanson. On the 13th day of February, 1908, said Hanson conveyed said land to his father, John M. Hanson. In July of that year the circuit court, upon application of the said Murnan, corrected the name of the defend-and in said judgment to Henry L. Hanson. Thereafter execution was issued in that action, and the said land was levied upon by the sheriff and sold. At this sale, J. H. Danner, plaintiff and respondent in this action, bid in said property for $225, and sheriff's certificate of sale was issued to him. About three months thereafter the said John M. Hanson commenced an action against Danner and the sheriff for the purpose of setting aside the said sheriff's sale and enjoining the sheriff from issuing a deed on the said certificate. In this action the plaintiff prevailed, and on the 11th day of May, 1911, the circuit court entered a decree, setting aside the said sheriff's sale, canceled the said certificate, and permanently enjoined the sheriff from issuing a deed thereon. Thereafter said Danner brought this action against Murnan for the recovery of the money he had paid on the said sheriff's certificate of sale. He had judgment for the full amount, together with interest since the date of said sale and his costs. From said judgment Murnan appeals.

The sole question to be determined is whether the purchaser at execution sale where the title fails, can recover from the judgment creditor the amount paid at such sale. There was no concealment on the part of the execution creditor. All matters affecting the title to the property, the validity of the judgment, and the execution sale were of record, and respondent is charged with knowledge of all such matters at the time he bid on the property at the sale. Appellant contends that the rule of caveat emptor should apply, that respondent should be held to have purchased at his own risk, and that he has no redress against the judgment creditor. That this rule is supported by the weight of authority cannot be doubted.

Holt v. Bason, 72 N. C. 308; Lewark v. Carter, 117 Ind. 206, 3 LRA 440, 10 AmStRep 40; Henderson v. Overton, 2 Yerg. (Tenn.) 394, 24 AmDec 492; Murphy v. Higginbottom, 2 Hill (S. C.) 397, 27 AmDec 395. But there are well-considered cases to the contrary. In Wanser v. De Nyse et al., 188 NY 378,117 AmStRep 871, the defendant bid in a piece of real estate at a referee's sale, but, finding that he could not secure a marketable title, refused to complete the purchase by paying the amount of his bid. Upon motion to compel payment the court said

"In this state a person who, in good faith, bids upon real property at a judicial sale where the particular interest offered is not expressly stated, has a right to assume that he is to receive a conveyance of the fee, and that the title to such real property is marketable. In case the title to such real property is not marketable, such fact is a defense to the motion to compel the purchaser to complete his purchase or to any other proceeding or action based upon such bid. ... The decision, on such a motion, should be based upon equitable principles."

In Dresser v....