Tillman v. Jackson

Decision Date01 January 1852
CourtMinnesota Supreme Court

Points for appellant:

1. The respondents recovered judgment in the district court against the appellant, issued execution thereon, and on it the sheriff levied upon, advertised and sold two lots in the town of St. Paul. The lots were sold as one parcel for one thousand dollars, and the respondents bid them in. The respondents afterwards made a motion for an order setting aside the sale, and directing an alias execution to issue. This motion was granted, and the defendant appealed.

2. This is an extraordinary proceeding, and in conflict with the general rule. 4 Johns. Ch. R. 254.

3. A court of equity was the proper forum, if relief could be had in the case. Lansing et al. v. Quackenbush, 5 Cow. 38; Vanderburg v. Briggs, 7 id. 357.

4. This is not a case for relief. There has been no suffering, and, if there has, the remedy is upon the sheriff. Groff v. Jones, 6 Wend. 522; Neilson v. Neilson, 5 Barb. 565; Wood v. Monell, 1 Johns. Ch. R. 502; 1 Burrill's Pr. 301.

Points for respondents:

1. This is not an appealable order. Rev. Stat. p. 414, § 11, sub. 3.

2. The court below has control to remedy any irregularity in its process. 3 Johns. R. 144; 2 Wend. R. 260; 5 Cow. R. 280; 1 Eq. Dig. p. 482, § 42; 4 Rand. 427.

Ames & Nelson, and Wilkinson, Babcock & Brisbin, for appellants.

Emmett & Moss, for respondents.


This is an appeal from an order made in the district court, setting aside a sale on an execution issued from said court, vacating the sheriff's return thereon, and directing the issuing of an alias execution. The order was granted on motion of the creditors in execution, wherein they alleged that two lots of land had been sold in one body by the said sheriff, whereas, the statute required that "when the sale is of real property, and consisting of several known lots or parcels, they must be sold separately," and that, for such reason, the sale was void.

The first question presented for the consideration of this court is, whether the defendant in the original action had the right of appeal from the order complained of. This must depend entirely upon our statute provisions upon this subject. Sub. 3 of § 11, ch. 80, of the Rev. Stat. of this territory, provides that appeals may be taken "in a final order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment." Is this a "final order affecting a substantial right, made upon a summary application after judgment," within the meaning of the statute? No authorities have been cited by counsel showing that any judicial construction has been given to this provision of statute as applicable to this question, nor am I aware that there has been any adjudication upon the subject. Looking, then, to the statute alone in its bearing upon the point under consideration, it does not appear to me to be ambiguous or doubtful. The order is "final," of course. That it "affects a substantial right," is also equally clear. The defendant's debt had been paid by a sale of his property. It is very easy to perceive that his rights might be affected in various ways by reviving the old debt against him. A second sale of the property might produce a less sum. Other real estate which he might desire to hold could be sold. Personal property could be sold, if any could be found belonging to him. But it requires no argument or illustration to demonstrate the truth of the position, that to revive an execution against a person, which has been actually paid, affects a "substantial right."

The order was also made upon a "summary application after judgment." It is difficult to perceive how the legislature could have found language more apt than that contained in subdivision 3 above referred to, if the intention had been to provide expressly for the case now under consideration. The opinion of the court is that the order is appealable. The question then arises as to whether the court below erred in making the order complained of. The appellant insists, in the first place, that an order of this character cannot be made under any state of facts, and that the plaintiff in execution must apply for relief to a court of equity, and cites some authorities to sustain this position; but such orders have often been granted by courts whose opinions are entitled to great respect, nor does it seem to me an objectionable exercise of the powers of the district court when the exigencies of the case are such as to demand it. The President v. Lansing, 2 Wend. R. 260; Adams v. Smith, 5 Cow. R. 280; Dumond v. Carpenter, 3 Johns. R. 140.

But in the view we take of this case, it becomes unnecessary to inquire whether such an order would be regular under any circumstances, because we are satisfied that in this case there was not sufficient reason for granting it, admitting the court had the power. The reason upon which the application for the order was founded, was that distinct lots of land were sold together in violation of the provisions of statute that each lot should be sold separately, and that the sale for that reason was void. Without examining the question of whether this would be the proper mode of relief, if the sale were void, we will first inquire if the respondents are warranted in their conclusion, that they had acquired no title by the original sale of the officer for the reason stated.

Courts have differed widely in determining what defects in the acts of an officer shall vacate or avoid a sale of, or a levy upon, real estate, by virtue of execution. And amidst the conflicting decisions, it becomes important to inquire what rule of law is most consistent with the rights of the parties and the interests of a business people by whom resort is constantly had to courts and officers of the law for the collection of debts. It often happens that the decision of a question of law, even of general application, is wholly unimportant outside of the parties to the cause, except as a guide for the future; and that whether the decision is one way or the other, is totally immaterial to the public generally, they being only interested in having a certain rule established. In such case, the court would inquire on which side was the weight of authority, and would decide accordingly. But such will not be the action of the court when the question before them has a material and important bearing upon the general interests. It cannot be doubted that a decision of this court which shall tend to render the titles to real property sold upon execution either more or less certain, will affect the interests of the debtor or creditor to a greater or less extent in all cases where debts are collected by sale of property under process of law.

It is, of course, for the interests of both debtor and creditor that property so sold should command a full price. To obtain this result is the principal, if not the only object of most of the pre-requisites of sale, such as notice, &c. but they fail in their intended object, and, indeed, are often the very means of preventing it, when a non-compliance by the officer with any of the minute directions of law endangers the title which he attempts to convey. Every doubt thrown into the scale which weighs the officer's title, will decrease, in a ten-fold proportion, the price which his title will command. It is obvious, then, that if it is the policy of the law to prevent, as far as possible, the sacrifice of property by sale upon execution for less than a fair value, it should also be its policy to relieve the purchaser from all doubt in the officer's capacity and power to convey a good title.

Purchasers rarely have the means of determining whether an officer has taken all the steps necessary to a full compliance with the provisions of law prior to a sale, and must, generally, rely alone upon the fact, that the officers had the power to act. It may be true that in this particular instance the purchaser had the means of knowing that two lots being sold together was in violation of a statute provision; but it would only happen occasionally that he would have any knowledge of the divisions, and this should not change a rule of law which is consistent and favorable in its operation. The provision is, at best, only directory, and if the debtor has suffered from this error of the officer, the latter alone is responsible for it. Groff v. Jones, 6 Wend. R. 522; Neilson v. Neilson, 5 Barb. R. 565; Wood v. Monell, 1 Johns. Ch. R. 502. It appears to me, therefore, that when the purchaser has satisfied himself that the officer is duly qualified to act, and has legal process in his hand authorizing him to sell, our laws should be so construed, if possible, as to relieve his mind of all doubt as to the title which he is to obtain, and to justify him as a prudent man in paying a fair consideration — the only exception to this rule being when the transaction is tainted with fraud. I have had occasion in one instance in this territory to declare a sale void where the levy was not made in compliance with the statute, but this was under a positive provision that "until a levy, property is not affected by the execution." Rev. Stat. ch. 71, § 91, p. 363, and ch. 70, ...

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