First Nat. Bank of Deadwood v. Black Hills Fair Ass'n

Decision Date28 May 1891
Citation48 N.W. 852,2 S.D. 145
PartiesFirst Nat. Bank of Deadwood v. Black Hills Fair Ass'n.
CourtSouth Dakota Supreme Court

Syllabus by the Court.

1. In relation to the levy of an execution upon property, the last clause of section 5119, Comp. Laws, provides that, "if no personal property be found, an indorsement to that effect must be made on the writ, before levy is made on real property." Where the return of the sheriff on the writ states that, "after diligent search and inquiry as required by law, I could find no personal property of the defendant whereby this execution could be satisfied in whole or in part, and I therefore made an indorsement on said execution to that effect, to-wit, 'No personal property found,"' held, that this was a compliance with the reason and spirit of the statute, and all that was required before levying an execution on real property.

2. If a defendant in execution has personal property, and it is sufficiently public so that an officer can know that it belongs to him, it is his duty to levy upon and sell it before levying upon and selling real property.

3. If a defendant has such personal property, and so conceals or places it out of the way that the officer cannot find it, if the defendant wishes to save his real estate, it is his duty to turn over or expose such property before the sale of the real property.

4. Where real property, consisting of several known lots or parcels, has been levied upon, the lots or parcels must be offered for sale separately; but, if no bidders can be found for the separate parcels, the land can be sold in gross. A creditor cannot be deprived of the privilege of having the land solden masse after the fact has been ascertained that it cannot be sold in lots.

5. Inadequacy of price of property bought at sheriff's sale is not such an irregularity as will warrant a judicial or execution sale to be set aside, unless accompanied by other facts showing, or tending to show, that such inadequate price was brought about by other acts or irregularities that were unlawful, or that it resulted from mistake, accident surprise, misconduct, or fraud.

Appeal from circuit court, Lawrence county.

McLaughlin & McLaughlin, for appellant. Moody & Washabaugh andMartin & Mason, for respondent.

BENNETT J.

The plaintiff recovered a judgment against the defendant upon default, and on the judgment an execution was issued. The sheriff, without indorsing upon the execution, "No personal property found," and without any levy made upon the personal property of the defendant, levied upon certain real estate, the property of the defendant, and sold it. This consisted of the S. E. 1/4 of the S.W. 1/4 of section 18 upon which are the race track, which is inclosed, grand stand, exhibition rooms, band-stand, stables, and fences of defendant; and the E. 1/2 of the N.W. 1/4, and lots 1 and 2 in section 19, township 5, range 4 E. B. H. M., containing 198.29 acres, and all the improvements thereon. The same was advertised and was sold in bulk, not in several tracts. The return of the sheriff shows that he offered the above-described property in separate parcels, but received no bids for the same, and then offered it as a whole, and it was sold to the plaintiff for $436.78,--the plaintiff being the highest and best bidder,--and that he executed, acknowledged and delivered to the plaintiff a certificate of sale, and the execution was returned satisfied. The sale was made on the 4th day of February, 1889. On the 29th day of April, 1890 the defendant served a notice of motion for an order of the court to set aside and vacate the levy and sale, the same not having been previously confirmed. The grounds of the motion were: (1) That the personal property of said defendant was not first taken on execution; (2) that no indorsement, "No personal property found," was made on the execution before levy on real estate; (3) that the real estate was sold together, and not separately; (4) that $62.50 paid is not credited on the judgment; (5) that the cashier of said plaintiff was vice-president, treasurer, and a director of defendant; (6) that the price paid was wholly inadequate. Upon the hearing, affidavits and counter-affidavits were offered. After hearing the same, the court overruled the motion to set aside and vacate, to which judgment of the court the defendant excepted, and perfected an appeal. The assignment of errors substantially raises the same points as in the motion to set aside and vacate, and need not be formally repeated. The sale was made February 4, 1889. The motion to set aside was not made until May 12, 1890. The sheriff filed his report of sale in the clerk's office on the 15th day of May, 1889, and no exceptions were filed for or on behalf of defendant to said report until after the time for redemption had expired. This does not seem to us to be within a reasonable time. Undoubtedly, a reasonable time must be some time within the period fixed by the law for redemption. If that period is allowed to expire, the application cannot afterwards be made, unless under special circumstances, showing some reasonable excuse for the delay, and then it would be doubtful if a court of law could afford the relief. Raymond v. Pauli, 21 Wis. 538; Stewart v. Marshall, 4 Iowa, 75. Numerous decisions are found that after the purchaser has paid his money and obtained a deed it is too late for a motion to set aside the sale. Sumner v. Moore, 2 McLean, 64; Blair v. Green way, 1 Browne, (Pa.) 218; Chambers v. Stone, 9 Ala. 260. In the case at bar the abstract does not disclose that the respondent had received a deed from the sheriff, but, as the time for redemption had expired, he was entitled to one, and the appellant's right was foreclosed as much as though a deed had actually passed. But,...

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