Wilson v. Russell

• Decision Date: 14 February 1887
• Citation: Wilson v. Russell, 31 N.W. 645, 4 Dakota 376 (N.D. 1887)
• Parties: WILSON v. RUSSELL
• Court: North Dakota Supreme Court

31 N.W. 645

4 Dakota 376

WILSON v. RUSSELL

Supreme Court of North Dakota

February 14, 1887

Appeal from the district court of Richland county.

The material facts are fully stated in the opinion.

Judgment affirmed.

Miller & Green, for defendant and appellant.

In foreclosures by advertisement the statute must be strictly complied with. Lee v. Mason, 10 Mich. 403; Doyle v. Howard 16 Mich. 267; Code Civil Proc. §§ 602, 606, 609, 614 and 611 lay down such procedure; Acknowledgment §§ 659 and 665, C. C. P.

From the language of the sections of the Code of Civil Procedure quoted above, it will be seen that in this class of foreclosures there are three persons who are authorized to make sales, viz.: the person named in the mortgage, the sheriff of the county and his deputy. It will be noticed, too, that wherever the execution of any paper in connection with the proceeding is mentioned, it is required to be done by the person making the sale, except in case of the deed when sale is made by the sheriff, in which case it may be done by his successor in office. C. Civ. Proc. § 609.

There can be no doubt that the deputy sheriff is recognized by these sections of the code as an officer. Sec. 1, chap. 4, Pol. Code, so recognizes him and provides the requisites of his appointment. People v. Lynch, 68 N.Y. 468. Gorman v. Gale 7 Cowen, 739; People v. Baring, 8 Cal. 408.

Under a statute providing for a sale by a sheriff or officer, such officer stands in the place of a mortgagee in exercising the power of sale. He executes the deed by virtue of the power. Hoffman v. Harrington, 33 Mich. 392; Anthony v. Wessell, 9 Cal. 103.

The defects in the acknowledgment must prove fatal. Fryer v. Rockefeller, 63 N.Y. 268; Smith v. Garden, 28 Wis 685; Fogarty v. Finley, 10 Cal. 239; Kimball v. Semble, 25 Cal. 447; McMann v. O'Conner, 27 Cal. 243; Kelsey v. Dunlap, 7 Cal. 160.

A sheriff's tale, without a deed, conveys only an equitable title. It will not sustain ejectment. 3 Waite Act. and Def. 30; Edwards v. Miller, 4 Heisk (Tenn.) 314; Crawford v. Green, 1 Karr (Del.) 464; Dean v. Pyncheon, 3 Chand. (Wis.) 9.

Wilson, Ball & Wallin, for respondent.

The words "or his deputy" were inserted in the statute to set at rest such doubts as existed under early decisions. Such as Wood v. Harris, 2 Wash. (Va.) 126; Tillottson v. Cheetham, 2 Johns. 63.

In Michigan a sheriff may act by deputy even without such words in the statute. Evens v. Sutherland, 41 Mich. 177.

In making such sales the sheriff acts officially. Ramsey v. Merriman, 6 Minn. 104; Allan v. Chatfield, 8 Minn. 387; Halekiss v. Cutting, 14 Minn. 538; Merrill v. Nelson, 18 Minn. 366; Albrecht v. Long, 25 Minn. 163; 33 Iowa 318; 509 Mo. 422; 63 Id. 545, Williams v. Lash, 8 Minn. 459; Willis v. Jelineck, 27 Minn. 23.

The successor in office of sheriff may execute deed. Haynes v. Frey, 11 N.W. 695 (Wis.); Russell v. Lawton, 14 Wis. 219; 16 Mich. 267; 34 Mich. 271.

The deputy acts in the name of his principal. Lewis v. Thompson, 3 Cal. 267; Joyce v. Joyce, 5 Cal. 449; Robinson v. Hall, 5 P. 763; Ogden v. Walters, 12 Kan. 282; Rover Jud. Sales, § 942; Freeman on Ex. §§ 327, 354.

Substantial regularity is all that should be acquired in statutory foreclosure proceedings. Reading v. Waterman, 46 Mich. 110; Eliot v. Wood, 45 N.Y. 77; Lee v. Clary, 38 Mich. 223.

Courts construe acknowledgments liberally to prevent the failure of justice. Kelly v. Calhoun, 95 U.S. 544; Wells v. Atkinson, 24 Minn. 161; Becker v. Anderson, 9 N. W. R. 641: Russ v. Wingate, 30 Miss. 440; Carpenter v. Dexter, 8 Wall. 513.

Courts will refer to the body of the instrument to support a defective acknowledgment. Smith v. Boyd Central Reporter Vol. P. 475 (1886); Wells v. Atkinson, 24 Mlnn. 161; Carpenter v. Dexter, supra; Nelson v. Graff, 44 Mich. 434; Chase v. Whiting, 30 Wis. 544.

The words "described in and who executed" are not essential. Henderson v. Grewell, 8 Cal. 584; Jackson v. Gummer, 2 Cowen 552; 84 Wedd. 87; Chase v. Whiting, 30 Wis. 547.

OPINION

FRANCIS, J.

August 15, 1881, Mary E. Pitcher, being the owner in fee of section 13, in township 136 N., of range 50 W., in Richland county, Dakota, executed a mortgage thereon to one George A. Elder to secure the payment of $ 2,500, according to the conditions of a certain promissory note of even date therewith, and for a like sum. Said mortgage contained a clause providing, in substance, that if default should be made in the payment of said sum of money, or the interest, or in payment of the taxes, or in the performance of any of the covenants or agreements of the party of the first part therein contained, then the said party of the first part might declare the said note fully due and payable, and sell the premises at public auction, "and convey the same to the purchaser in fee-simple, agreeable to the statute in such case made and provided." August 24, 1881, Elder assigned the mortgage to the respondent by assignment in usual form. The mortgage and assignment were duly recorded. The mortgagor defaulted in the payment of annual interest, and March 21, 1884, the respondent began the foreclosure of the mortgage by advertisement; and on May 9, 1884, the property covered by the mortgage was sold under said foreclosure notice, and "struck off" to the respondent for the amount then due on the mortgage, together with the costs and charges, amounting in all to the sum of $ 3,026.15, he being the highest bidder therefor. At the time of the sale Moses P. Proper was the sheriff of Richland county, and S. B. Brigham (full name not given) was the deputy sheriff. The notice of sale gave notice that the mortgaged premises would be sold at public auction May 9, 1884, at 10 o'clock in the forenoon, but did not state who would act as auctioneer. Said Brigham acted as auctioneer at the sale.

After, and on the day of sale, the following affidavit of sale was made:

"Territory of Dakota, County of Richland--ss.:

Moses P. Proper, being duly sworn, says that he is the sheriff of the county of Richland, and that as such sheriff he acted as auctioneer at the sale of the premises described in the foregoing and annexed printed copy of notice of mortgage sale, and that pursuant to such notice of sale he sold said premises at public vendue, at the time and place of sale therein mentioned, to-wit; at the hour of 10 o'clock in the forenoon, on the 9th day of May, A. D. 1884, at the front door of the court house in the county of Richland, wherein said premises are situated; and that said premises were then and there purchased by James Wilson for the sum of two thousand and twenty-three dollars, he being the highest and best bidder, and that being the highest and best sum bidden, for such premises at such sale; that said sum bid as aforesaid embraced the following items, disbursements, and amounts, as exhibited to me at the time, viz: * * * And deponent further says that said mortgaged premises, consisting of one tract, was sold in one parcel, and no more of said premises were there sold than was necessary to satisfy the amount due on said mortgage at the date of the notice of sale, together with interest, taxes paid, and costs; and that said sale was conducted fairly, honestly and according to law, to the best of his knowledge and belief.

MOSES P. PROPER,

Sheriff of Richland Co., D. T.

By S. B. BRIGHAM, Deputy.

Subscribed and sworn to before me this ninth day of May, A. D. 1884. JOSHUA R. BUXTON,

[SEAL.] Notary Public, Richland County, D. T.

Filed for record this 9th day of May, 1884, at 4 o'clock P. M.

J. M. RUGGLES,

Register of Deeds.

An error having been made in footing up the items of disbursements, another affidavit of sale was, on the nineteenth day of May, 1884, made as follows:

"S. B. Brigham, Deputy Sheriff of Richland County, D. T. , to James Wilson.

Territory of Dakota, County of Richland--ss.:

S. B. Brigham, being duly sworn, says that he is, and was at the time hereinafter mentioned, deputy sheriff of the county of Richland, and that, as such deputy sheriff, he acted as auctioneer at the sale of the premises described in the foregoing and annexed printed copy of the notice of mortgage sale, and that pursuant to such notice of sale he sold said premises at public vendue at the time and place of sale herein mentioned, to-wit, at the hour of ten o'clock in the forenoon on the ninth day of May, A. D. 1884, at the front door of the court house in the county of Richland, wherein said premises are situated; and the said premises were then and there purchased by James Wilson for the sum of three thousand and twenty-three dollars, he being the highest and best bidder, and that being the highest and best sum bid, for such premises at such sale. * * * And deponent further says that said mortgaged premises, consisting of one tract, sold in one parcel, and no more of said premises were then sold than was necessary to satisfy the amount due on said mortgage at the date of the notice of said sale, together with interest, taxes paid, and costs, and that said sale was conducted fairly, honestly, and according to law, to the best of his knowledge and belief. S. B. BRIGHAM.

This affidavit is made to correct a clerical error in the former affidavit, as of record in Book O of mortgages, page 63.

S. B. BRIGHAM.

Subscribed and sworn to before me this nineteenth day of May, A. D. 1885. JOSHUA R. BUXTON,

[SEAL.] Notary Public, Richland Co., D. T.

Filed for record May 19, 1885, at 9 A. M.

J. M. RUGGLES, Register of Deeds."

On the day of the sale Moses P. Proper, by Brigham, as such deputy sheriff, gave to the purchaser a certificate of sale, as follows:

"Mary E. Pitcher, by the Sheriff of Richland County, to James Wilson.

Territory of Dakota, ...