Dazet v. Landry

• Decision Date: 20 August 1892
• Docket Number: 1,360.
• Citation: 30 P. 1064,21 Nev. 291
• Parties: DAZET et al. v. LANDRY et al.
• Court: Nevada Supreme Court

30 P. 1064

21 Nev. 291

DAZET et al. v. LANDRY et al.

NO. 1,360.

Supreme Court of Nevada

August 20, 1892

Appeal from district court, Lyon county; RICHARD RISING, Judge.

Action by J. B. Dazet and F. S. Lacrouts against James, Napoleon and Angella Landry and Dennis Kehoe, for dissolution of a partnership and sale of the partnership property From a decree confirming a sale of the property, defendants appeal. Affirmed.

Robert M. Clarke, for appellants.

The proceedings of the sheriff were not final till confirmed by the court. Gen. St. Nev. §§ 3301, 3302, 3320, 3321, 3341; Freem. Co-Ten. 545; In re Bost, 3 Jones, Eq. 483. After selling the property to Landry, the sheriff could not reoffer it without again giving notice. Gen. St. §§ 3311 3248. A sale for a grossly inadequate price should be vacated. Freem. Co-Ten. 544; Allen's Estate, 11 Phila 48.

W. E. F. Deal, for respondents.

The sheriff had the right to resell the property without further notice, on failure of the bidder to make good his bid Freem. Ex'ns, §§ 300, 301; Askew v. Ebberts, 22 Cal. 265; Croacher v. Oesting, (Mass.) 9 N.E. Rep. 533; People v. Hays, 5 Cal. 66; Maher v. Insurance Co., (Ind. Sup.) 19 N.E. 305. Even if there had been no proper notice the sale would have been valid after confirmation by the court. Bank v. Huntoon, (Kan.) 11 P. 375; Smith v. Randail, 6 Cal. 47; Simson v. Eckstein, 22 Cal. 590; Freem. Ex'ns § 339. It was the duty of the sheriff to resell immediately on failure to pay. Camden v. Mayhew, 129 U.S. 84, 9 S.Ct. 246; Freem. Ex'ns,§ 300, and authorities in note 2; Isler v. Colgrove, 75 N.C. 341; Ruckle v. Barbour, 48 Ind. 274; Michel v. Kaiser, 25 La. Ann. 57; Isler v. Andrews, 66 N.C. 552; Jones v. Null, 9 Neb. 254, 2 N.W. 350; Humphrey v. McGill, 59 Ga. 649; Ror. Jud. Sales, § 599; Sedg wick v. Fish, 1 Hopk. Ch. 669; Russell v. Gibbs, 5 Cow. 396; Swope v. Ardery, 5 Ind. 213; Walworth v. Readsboro, 24 Vt. 252; Thompson v. McManama, 2 Disn. 213; Roberts v. Westbrook, 1 Cold. 114; Illingworth v. Miltenberger, 11 Mo. 80; Williamson v. Berry, 8 How. 544. There was no sale to Landry. Ror. Jud. Sales, § 91; Veazie v. Williams, 8 How. 153; 2 Kent, Comm. (12th Ed.) 138. All bids at public sale are subject to the right of the bidder to withdraw it at any time before the property is knocked off to him. Fisher v. Seltzer, 62 Amer. Dec. 335; Blossom v. Railroad Co., 3 Wall. 206. Every bid made by Landry was fraudulent, and no one could be bound by any bid made over him. 2 Kent, Comm. (12th Ed.) 538; Veazie v. Williams, 8 How. 153; Freem. Ex'ns, 298, and note 4; Fisher v. Hersey, 17 Hun, 370; Freem. Co-Ten. (2d Ed.) § 544. Inadequacy of price is not a ground for setting aside a sale. Railroad Co. v. Creed. (Cal.) 11 P. 772; Bank v. Huntoon, 35 Kan. 577, 11 P. 369; Studebaker v. Johnson, (Kan.) 21 P. 271; Weaver v. Lyon, (Pa. Sup.) 5 A. Rep. 782, and note p. 784. The sheriff acted merely as the organ of the court, and not as a ministerial officer. Ror. Jud. Sales, § 46 et seq. The decree of confirmation cured all defects. Ror. Jud. Sales,§§ 53, 122, 126-128; Smith v. Simpson, 60 Pa. St. 169; McBain v. McBain, 15 Ohio St. 337; Thompson v. Phillips, 1 Baldw. 272; Kellam v. Richards, 56 Ala. 240; 12 Amer. & Eng. Enc. Law, p. 219; Harrison v. Harrison, 1 Md. Ch. 332.

MURPHY J.

The respondents and Angella Landry were the owners of, and tenants in common of, a mining claim, situate in the Devil's Gate & Chinatown mining district, at Silver City, Lyon county, Nev. The plaintiffs commenced an action for the dissolution of the mining copartnership and a sale of the mining property. Defendants James Landry, Napoleon Landry, and Dennis Kehoe were made defendants, as having some interest in or claim upon said property. The defendants answered, and, on the 1st day of December, 1890, the parties, with their attorneys, appeared in court, when it was stipulated and agreed by and between them that, after certain work should be done in the mine, a decree of sale should be entered by the court, as prayed for in the complaint. On the 30th day of December, 1890, the parties again appeared in court, when it was made to appear to the satisfaction of the court, that the work ordered to be done was completed, whereupon a decree of sale and distribution of the proceeds was ordered. Said sale was to be made by the sheriff, at public auction, for the highest cash price, the same as property is sold under execution, after 30 days' notice had been given by publication in a newspaper and posting of notices. In compliance with the decree, the sheriff, after having advertised said property for sale, did on the 16th day of February, 1891, offer the said premises for sale at public auction to the highest and best bidder for cash. James Landry, one of the defendants, bid for said property the sum of $11,000, which was the highest bid offered, and the property was struck off to him for that sum; but he did not at said sale, or at any time since said sale, pay, or offer to pay, the amount bid by him, nor any part thereof. Several days after said sale to James Landry the sheriff, becoming satisfied that the bid was not made in good faith, readvertised said property, and on the 30th day of March, 1891, exposed the property for sale for cash, when Napoleon Landry, another of the defendants, bid $8,500, which was the highest bid offered, and the property was struck off to him, whereupon Napoleon Landry asked the sheriff for 15 minutes' time to get the money to make his bid good. The sheriff granted his request, and at the same time notified Landry that it would not be considered a sale without the money was paid down, and at the same time the sheriff requested the bystanders to remain, as it would not be considered a sale until the money was paid. The sheriff waited 30 minutes. Landry not returning to make his bid good, the property was resold by the sheriff to F. S. Lacrouts for the sum of $6,100, that being the highest sum bid at such sale. On the 9th day of April, 1891, the time of the hearing for confirmation of said sale, all parties being present in court, Angella Landry objected to the confirmation of the sale to Lacrouts. After hearing all the testimony offered in favor of and against the confirmation of the sale, the court made an order that Napoleon Landry have 10 days thereafter to pay to the sheriff the sum bid by him, to wit, $8,500, and, upon the payment of said sum of money to the sheriff, the sale of the property would be confirmed to him. On the 21st day of April, 1891, the court being in session, and Napoleon Landry not having paid to the sheriff the sum bid by him for the premises, the court stated to the attorney for contestant that, if he (the attorney) would give the court any assurance that the property would bring more than $6,100, the court would set the sale aside and order the property resold. The counsel stated to the court that they would give no such assurance, whereupon the court made an order confirming the sale to Lacrouts. From this order the defendant Angella Landry appeals on the following grounds:

1. "That the sheriff should have reported his proceedings of the sale to James Landry to the court, and James Landry should have been given an opportunity to pay on confirmation of the sale to him." The answer to this objection is that the order of the court was that the property should be sold for cash. Section 3311, Gen. St. Nev., reads: "The sale of real property made by referee under this chapter shall be made by public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution. The notice shall state terms of sale." Section 3312 requires that in the order of sale the court shall direct the terms of credit which may he allowed for the purchase money. Section 3318 provides that, in all cases of sale of property, the terms shall be made known at the time. Section 3334 provides that, instead of ordering a sale of a mining claim for cash, the court may direct the referee to divide the claim as provided by statute. The court complied strictly with the provisions of the statute, and ordered the premises sold for cash, which meant that, the moment that the bid was accepted, the bidder should be prepared then and there to make his bid good, by depositing the sum bid in the hands of the sheriff. It would be inconsistent to say that a sale for cash meant a sale on credit for 30 days, or until the confirmation of the sale by the court. If such had been the intention, the court would have said so in its decree, and provided for the purchaser depositing a certain per cent. of the purchase money, or the bond that should be given to secure the payment of the money, upon the confirmation of the sale. A sale for cash is a sale for the money in hand. Steward v. Scudder, 24 N. J. Law, 98; Bliss v. Arnold, 8 Vt. 255. "Cash" is money at command; ready money. Worcester; Whart. Law Dict. The sheriff was not required, under the order of sale, to report his proceedings to the court before readvertising and resale. Section 3248, Gen. St., provides that, if a purchaser refuses to pay the amount bid by him for property struck off to him at a sale under execution, the officer may again sell the property to the highest bidder, after again giving the notice herein before provided. The order of the court, that the property be sold in one parcel as real property is sold in one parcel as real property is sold under execution, makes this section applicable, and, when the sheriff became satisfied that James Landry was not or could not pay the amount of his bid, it was the duty of the sheriff to readvertise and resell the property.

2. The action of the sheriff, in stating to the proposed bidders the terms of the sale, and that it was to be...