Power v. Larabee

Decision Date08 January 1894
Docket Number6731
Citation57 N.W. 789,3 N.D. 502
CourtNorth Dakota Supreme Court

Appeal from District Court, Barnes County; Rose, J.

Action by J. B. Power against J. D. Larabee to cancel a certificate of redemption of land sold on execution. From an order vacating the sale, plaintiff appeals.



J. E Robinson, for appellant.

A statutory direction to sell land on execution in parcels where it consists of distinct tracts is directory merely and not peremptory. A sale en masse is voidable but not void and a motion to vacate the sale comes too late after the year of redemption. Freeman on Ex. 296; Griswold v Stoughton, 84 Am. Dec. 409-403; Cunningham v. Cassidy, 17 N.Y. 276; Smith v. Randall, 6 Cal. 47; Vigareaux v. Murphy, 54 Cal. 351; San Francisco v. Pixley, 21 Cal. 57; Tillman v. Jackson, 1 Minn. 183; Lamberton v. Bank, 24 Minn. 218-288; Bunker v. Rand, 19 Wis. 253, 88 Am. Dec. 684; Vilas v. Reynolds, 6 Wis. 214; Raymond v. Holburn, 23 Wis. 57, 99 Am. Dec. 105; Rector v. Hart, 8 Mo. 448, 41 Am. Dec. 650; Mohawk Bank v. Atwater, 2 Paige 54; Cunningham v. Felker, 26 Iowa 117; Roberts v. Flemming, 53 Ill. 196; Johnson v. Hovey, 9 Kan. 61; Bell v. Taylor, 14 Kan. 277; Wilson v. Bronnenberg, 81 Ind. 193; Aldrich v. Wilcox, 10 R. I. 405.

The sheriff is presumed to have done his duty and his affidavit is not competent to impeach his official acts. Smith, on Sheriffs 216; Sheldon v. Payne, 7 N.Y. 453; Baker v. Duffee, 23 Wend. 289; Fitzgerald v. Kimball, 86 Ill. 396. By comfirmation the sale is made the act of the court and the judicial sanction cures all defects and irregularities. Freeman on Ex. 304; Osman v. Traphagen, 23 Minn. 80; Voorhies v. Bank of U.S. 10 Pet. 449; Montgomery v. Samonoy, 99 U.S. 490; Koehler v. Ball, 2 Kan. 160, 83 Am. Dec. 451.

The right to avoid a sale en masse may be waived by acts of ratification or by neglect to assert the right in time. Cunningham v. Cassidy, 17 N.Y. 276; Vilas v. Reynolds, 6 Wis. 214; Roberts v. Flemming, 53 Ill. 196; Osman v. Traphagen, 23 Minn. 80; Griswold v. Stoughton, 84 Am. Dec. 409; Vigareaux v. Murphy, 34 Cal. 354.

G. K. Andrus & Herman Winterer, for respondent.

There can be no public sale without bidders or bystanders. Picketts v. Unangst, 15 Penn. St. 90, 53 Am. Dec. 572. A sheriffs sale made with no bidders or bystanders present except the plaintiff is collisive and invalid. McMichael v. McDermott, 17 Penn. St. 353, 55 Am. Dec. 560. A sale en masse or for grossly inadequate price is void. Herman on Ex. 223; Lurton v. Rodgers, 22 N.E. 866; Cohen v. Menard, 24 N.E. 604; Ollis v. Kirkpatrick, 28 P. 435; Garvin v. Han, 18 S.W. 731; Jackson v. Newton, 18 Johnson 362; Weaver v. Lyon, 5 At. Rep. 782; Bean v. Hoffendorfer, 2 S.W. 556; Grim v. Reinbold, 23 At. Rep. 1129; Fletcher v. McGill, 10 N.E. 651; Branck v. Foust, 30 N.E. 631.

CORLISS, J. WALLIN, J., (concurring.)



The appeal is from an order vacating an execution sale of real estate. At the sale the plaintiff in the execution bid in the property for $ 96. One of the grounds on which the validity of the sale is attacked is the inadequacy of the price for which the property was sold. There was over 1,700 acres sold at the sale, and it appears that the land was worth at least $ 4 an acre. That this in adequacy is so gross as to shock the conscience cannot be doubted. In addition it appears that the sheriff of the sale utterly failed to comply with the statute which requires him to offer the land for sale in separate parcels. There were no less than 11 distinct tracts sold in a lump, without even an attempt to sell them separately. "When the sale is of real property consisting of several known lots or parcels they must be sold separately." Comp. Laws, § 5144. While we are not prepared to say that after a sale has been fairly advertised and conducted, and is regular in every respect, it should be set aside on the sole ground of the inadequacy of the price bid, yet, where the statute requiring a sale in separate parcels has been so grossly violated as in this case, we would have no hesitation in setting aside the sale, were it not for the statute which permits the judgment debtor to redeem from the sale at any time within a year. We cannot see how the debtor can appeal to the inadequacy of the price as a reason for having the sale vacated. The law allows him to overthrow such a sale, to protect him against a sacrifice of his property. Where his title is divested at the sale, his only remedy to protect himself from loss is by attacking the sale itself. But, where a right to redeem after the sale is vested in him by statute, it is not necessary for him to attack the sale to save a sacrifice of his property. Indeed, he will always find it more to his advantage to redeem. By redemption he can wipe out the sale, and destroy the lien of the judgment upon the land, for a trifling sum in comparison with the value of the property on which the judgment was a lien. If the amount bid is less than the amount of the judgment, the defendant, by redemption, secures the same benefit which would accrue to him should the plaintiff voluntarily release the land from the lien of the judgment on payment of only a portion thereof, the land on which it was a lien being worth many times the amount so paid. Where the defendant has full knowledge of the sale, and an opportunity to redeem, the injustice resulting from a sale for an inadequate price will fall, if at all, upon the plaintiff, who may find that the defendant has by redemption secured the release of very valuable property from the lien of a judgment on the payment of a paltry sum upon redemption, leaving the greater portion of the judgment unsecured. It will be an interesting question, when it arises, whether the judgment creditor himself may not have a sale set aside for gross inadequacy of price when, through excusable mistake on his part, or conduct on the part of the defendant tending to create fears as to the title of defendant, the plaintiff has been deterred from bidding the reasonable value of the land and the full amount due upon his claim, or, in case that amount exceeds the value of the land, has been deterred from bidding the reasonable value of the same. The authorities fully sustain us in our ruling that the right of redemption, where defendant has had knowledge of the sale, and an opportunity to exercise his right of redemption, affords him ample protection against a sacrifice of his property through a sale for an inadequate price. 2 Freem. Ex'n, p. 1050, note; Mixer v. Sibley, 53 Ill. 61; First Nat. Bank v. Black Hills Fair Ass'n, 2 S.D. 145, 48 N.W. 852 at 852-854; Coolbaugh v. Roemer, 32 Minn. 445, 21 N.W. 472.

But there is connected with a sale for an inadequate price, in this case, an irregularity in the shape of the sale of 11 distinct parcels in a lump. What effect has this irregularity in taking the case out of the rule we have just enunciated? The statute makes it the duty of the sheriff to sell separately several known lots or parcels. He should not sell them in a lump. Section 5144, Comp. Laws: "And when the sale is of real property consisting of several known lots or parcels they must be sold separately." This statute was violated. Eleven distinct parcels were sold as one piece. But should the sale be set aside on this account? That depends upon the purpose of the statute and the particular facts of this case. The sheriff is required to sell each parcel separately, for two reasons. One is that the land may bring the best price, and that no more than enough to pay the lien shall be sold; and the other is to enable the defendant to redeem any one or more of the parcels, without being compelled to redeem all the land sold. When sold in a lump it is impossible for him to redeem less than the whole, because their is no basis for redemption of any particular parcel or parcels. Now, so far as the object of the statute is to secure the best price for the property at the sale, the defendant, who has the right to redeem, and has a fair opportunity to exercise that right, has no interest in the matter. He will always be benefited by a sale like the one in the case at bar, where the property brings less than its value, and less than the amount due upon the judgment. He can redeem, and by redemption he frees his property from a lien for less than the amount due upon the lien, and less than the value of the property. The person who is interested in a sale of separate parcels, so far as the price to be obtained is concerned, is the plaintiff; and it is quite significant that the defendant is not to decide whether the property shall be sold in a lump, or in parcels, against the rights of the plaintiff to have it sold in separate parcels the statute merely declaring that the defendant may direct the order in which the several parcels shall be sold. Comp. Laws, § 5144. But in so far as a sale in lump interferes with the defendant's right to redeem any particular parcel or parcels, and compels him to redeem property which may not be worth redeeming, and in order to redeem the parcels of value to pay something additional on account of the necessity of redeeming that which it may not be profitable for him to redeem, the duty of the sheriff to sell in separate parcels is absolute. Two parcels of land are sold, one valuable to the owner, the other mortgaged for all it is worth. If sold in a lump, it is impossible to tell how much of the price was bid for the parcel worth nothing to the defendant. The exercise of the right of redemption, therefore, affords him no adequate protection. By reason of the sheriff's failure to obey the statute, the defendant in such a case, if he cannot have the sale set aside,...

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