Miller v. Winslow

• Decision Date: 07 October 1912
• Citation: 70 Wash. 401,126 P. 906
• Parties: MILLER et ux. v. WINSLOW et al.
• Court: Washington Supreme Court

126 P. 906

70 Wash. 401

MILLER et ux. v. WINSLOW et al.

Supreme Court of Washington

October 7, 1912

Department 1. Appeal from Superior Court, Snohomish County; W. W. Black Judge.

Action by William Miller and wife against W. F. Winslow and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Merrick & Mills, of Everett, for appellants.

Coleman Fogarty & Anderson, of Everett, for respondents.

CROW J.

This suit was brought to quiet title to four certain town lots in the city of Everett. The lots were sold by the sheriff to satisfy a lien for street improvements. The suit, while denominated an 'action to quiet title,' is in reality a suit in equity to redeem the property from the defendants who claim title under the sale. Many irregularities are charged; but we find it unnecessary to consider them. They were probably all cured by the confirmation of the sale. The sale, however, cannot be upheld for reasons which will presently appear. At the sale, which occurred December, 1909, the sheriff was the highest and best bidder and the property was knocked down to him. An opposing bidder, one Kuster, finding that the sheriff was bidding at the sale, ceased bidding, and immediately after the sale charged him with being disqualified, in virtue of his office, to bid at his own sale, and demanded that the property be turned over to him, or, in case of his refusal, he (Kuster) would carry the matter into court, and would also defeat a purchase of other property which the sheriff had bid in over him a few days before. Accordingly the deputy, who conducted the sale, was directed to make out a certificate of sale to Clay & Kuster. This was assigned to W. F. Winslow, the father-in-law of Kuster. The present defendants, excepting George M. Buck, who is a mortgagee, are the record owners of the property; defendant Winslow claiming two of the lots, and defendants Doolittle the other two. The Doolittles have not appealed.

In February, 1910, plaintiffs tendered to defendants the amount which they believed to be due, and, upon defendant's refusal to accept the amount so tendered, this suit was begun. The four lots were bid in for a nominal sum. The exhibits are not here; but it appears they brought $35 or $40 apiece. The record shows that the lots were worth at the time from $1,500 to $2,000.

The only question is, therefore, whether the sale to the sheriff is a mere irregularity which has been cured by confirmation, or is such a fraud upon the rights of the plaintiffs as will avoid the sale. The weight of authority seems to sustain the proposition that a sale to a disqualified person is not, in the absence of a statute, void, but is voidable. We understand the word 'void,' when used in connection with judicial sales prohibited under a statute, to mean a nullity, or something that cannot be ratified. On the other hand, the word 'voidable,' used in this connection, means that which may be avoided at the suit of the interested party, but is nevertheless subject to ratification, which may be made to appear by showing the lapse of time or the acceptance of benefits. The sale in this case being challenged within a reasonable time and in a proper proceeding, we think the law, as well as sound public policy, demands that the sale be held for naught. It is an ancient rule that the seller holding a trust relation to the thing sold cannot conduct the sale to his own advantage. This principle sustains our decision in the case of Roger v. Whitham, 56 Wash. 190, 105 P. 628, 134 Am. St. Rep. 1105, 21 Ann. Cas. 272, and has been repeatedly applied when sheriff's sales have been attacked for the reasons here invoked.

'No sheriff * * * shall directly or indirectly purchase any property whatever at any sale by virtue of such execution and all purchases made by such sheriff * * * or for his use shall be void.' Crocker on Sheriffs, § 486. The rule as stated by Mr. Crocker is taken from the New York Code; but the Code is only declaratory of the general rule, which, with its reasons, is well stated in Perkins v. Thompson, 3 N. H. 144. The court says: 'It is apprehended that the soundest policy forbids that any person should be the purchaser of that which he is appointed to sell. The characters of vendor and purchaser of the same article, at the same time, are inconsistent, and cannot be united in the same person. As sheriff, this defendant was bound by his duty, in relation to the debtor and creditor, to procure the best price he could for the horse; but the moment he employed an agent to bid off the horse for himself it became his interest to act in direct opposition to his duty. It never can be fit or proper to permit a sheriff to put himself in this situation. It is a situation neither safe to himself, nor to the debtor and creditor. Our statute makes it the duty of coroners to serve all writs and processes where the sheriff is a party. 1 N.H. Laws, 160. This provision is founded upon the manifest impropriety of calling upon or permitting the sheriff to act officially in a situation where his interest might impel him to go counter to his duty. If, then, the law will not permit a sheriff to serve his own writ, even by simply leaving a summons with the defendant, with what consistency can it be decided that a sheriff may be intrusted to sell goods upon an execution, where it is his duty to procure the best price he can, after he has employed an agent to purchase them, and has become interested in having them purchased as cheaply as may be? It is very possible that a sheriff might sell an article for the full value, and still be himself the purchaser. But the temptation to act contrary to his duty is so great he ought not to be permitted to act where the temptation exists. Nor is this all. The sheriff has the means of lessening the price of the articles sold by determining the time and place of sale favorably to his own views. And this might be so done that no human tribunal could detect the fraud. If it were once decided in this court that a sheriff might be interested lawfully in the purchase of articles he himself was selling upon an execution, it would open an avenue to frauds, for the detection of which our courts have very inadequate means. And it seems to us that every principle of public policy...