A TREATISE ON THE LAW OF SHERIFFS CORONERS AND CONSTABLES WITH FORMS BY WALTER H. ANDERSON, LL.B. LL.D. 1 Court ions of of the Idaho, California, Tennessee, and Sup of the United States Bars, author of Lio the Corporate Entity, An Automobile Accident Suit, Declaratory Juigmente, and coauthor of Quindry, Bonds and Bondholders ASSISTED BY CLYDE BOWEN, LL.B. of the Idaho and of the United 8 wreme Court rater Bare AND GUS CARR ANDE! 7 of the Idaho Bar REPRINTED AND PUBLISHED 1984 JAMES VON SCHMIDT, P.O. BOX 6704, BOISE, 83707TABLE OF CONTENTS VOLUME TWO CHAPTER XxX EXECUTION-LEVY UPON LANDS Sees. 538, AL Ancient Common Tv, No Lery upon Lands 530, Writ of Execution as Applied to Land, 540. Appraisal S41, Subdivision of Lands Sold under Execution 342, Sucient Description in Oficer's Return M3. Presumption ae to the Correctnens of Return When Land Levied Upon S44 Plaintiff May Be Purchaser, 545. Inadequaey of Price—Plus Irregularities SAB. Sheriff's Dood Prita Facie Evidence of Title. HAT. Sheriff's Deed-—Its Reci BMA. Sheriff's Deed Must Be Taken Out in Due Senson, 540. Sherif Deed Effect. of CHAPTER XXT EXECUTION ON FIXTURES Sea, 850." Lery upon Fixtures, Custom and Usage a3 Determining What fs « Fixture, Rulings Generally with Respect to Fixtures, Trade Pictures.CHAPTER XXII EXECUTION SALES Srea 354, Execution Sales in General. 555, Sale under Satisfied Judgment. 4558, The Rule of Careat Emptor at Applicable to Feacution Sales 55T. Enaentiala of an Execution Sale in Genera 558, Seles Should Be Made to Highest Bidder and for Cash 888, Time of Holding Sale and Advertisement Thereot 580, Necensty for Delivery and Change of Possession 601. Liability of Sheri for Failing to Collect Sale Price 502. Personal Property Should Be Sold in Parcels 598, Real Extate Should Ge Sold im Parcel, S04. Necessity of Having Property within View 85. Property of One Clans Cannot Be Sold as That of Another, 08, Combination Sale of Realty and Pereooalty. 561. Discretion of Oftcer im Making 8 U8, What Amounts to Refusal to Comply by a Bidder. 569. Duty of Sheriff with Respect to Amount of Property Sold piration of Term of Olice or after Return Day 71. Sheri Cannot Purchase at Ills Own Sale, S12 Sheriff's Crier at Sale May Purchase When. S73. Mule of Caseat Emptor Applies at Execution Sale St4, What Constitutes a Bid; Accepted Bid Ie a Sale 515. Right of Oficer to Reject « Bid 38. What Law Governs SIT. Execution Salen Required to Be Honestly Made without Regard to the Wishes of the Partin STS. Who May Purehase at Execution Sale S510. Execution Sale as within the Statute of Frauds, 580. Character and Ofice of Venditiont Exponas. aitCHAPTER XXII RETURN OF PROCESS, GENERALLY Sees SAL. Return Defined 382, Necessity for Retuen 589. Forme of Belurns TK Th Whose Name Heturm Should Be Made 585. Construction of Retur, S565. In Some Cases It Ts Imperative to Show How Service Was Mada, GAT. Service of Process by Reading. 588. General or Special Return. 589. Complinace with Law Demanded in Retura, 500, Necemity of Showing Delivery of Copy. S01. Person Served Should Be Tdentifed ia. Return 502, Sulicieney of Copy to Fe Served, 503. What Should Be Shown by Return to Make ft Valid SOL Assisting Return by Bvidence Alfunde 595. Duty to Tteturn Process 598. Upon Heturn of Procens Tt Becomes Funetus Officio, CHAPTER XXIV RETURN OF EXECUTION Sufiioney of Return of Execution, Generally. A Nulla Bona Return, Suficiency Thereof, and When Permienibt Valid and Invatid Ketuene of Rxecutions Generally tlt of Return ‘When Return May Be Impeached. idence to Impeach Retura, Explanation Sustaining or Contradicting the Return by the Oficer (04. Burden of Proof ia Attacking an Oficer's Return wvCHAPTER XXV FAILURE TO RETURN EXECUTION G05. Failure to Return Execution Debt Urima Facie Lost 000, Eifect of Failure to Make Teturn es Fixing Liability. 407. Burden of Proof with Respect to Return Esevation, 608. False Return, 400, Falve Return as Affected by Invegularity of Process 610. Mitigation of Damages for False Return G11. Nominal Damages Allowable for False Returo, CHAPTER XXVI AMENDS (T OF RETURN See. 612. Amendment of False Return, 019. In Absence of Fraud or Dad Faith, Generally the Return May Be Amended to Speak the Truth. G4, Process Cannot Be Reissued by Way of Amendment. GIS. Discretionary Power of Court with Respect to Amendmenta 618. Limitation on Right to Amend Returna, GIT. Necessity of Notice of Application GIB. Procedure to Obtain Amendment of Retura 610. Nature of Amendments Generally Considered. 420. Amendment Dates Back to Date of Origins! Retura. @21. Lest Return Supplied by Paro @2IA. Duty of Oficer to Amend, Compelling Arscndment. CHAPTER XXVIT DUTY OF SHERIFF IN CONNECTION WITI CRIMINAL CASES Sees, 822, Custody of Prisoner after Arrest and before Trial. 623, Execution of Sentence. 624, General Duties of the Sherif,CHAPTER XXVIII EXECUTION OF SEARCH WARRANTS Authority of Officer Must Be Derived from Search Warrant Execution of Search Warrant in Night Time Sear-h Warrant Required to Be Executed within Reasonable Tie, Authority to Execute the Warrant, Necessity of Poaseating Search Warrant. 630. Territorial Limitations in the Execution of a Search Warrant, 831, low Search Warrant Tx Served 832, Jobn Doe Warrant No Protection. 433. Place to Be Searched O34. Place That May He Searched, 635. Amount of Force Authorized in Making Search 938. Amendments of Search Warrants, 837, Duty of Offcer to Deliver Copy of Warrant and Tsaue a Signed Schedule of Property Taken, 538, Search of an Automobie, 639, Search without a Warrant, 40, Security of Person against Search. CHAPTER XXIX REMEDY FOR ILLEGAL SEARCH AND SEIZURE sre. G4. Megal Search without a Warrant. 642. Liability for Search under legal Search Warrant. 649, Illegal Search and Seisure of Person, O44, Valid Search Warrant No Protection for Illegal Conduct 45. IHlegal Search as 4 Criminal Offense. iCHAPTER XXX WRITS OF EXECUTION FOR POSSESSION OF PROPERTY 548. Write of Execution for Postession of Property Generally Considered. G47, Execution in Bjectmeat G48. Against Whom an Execution in Ejectment Ie Effective 140, Execution of « Judgment in Forcible Eatry, Forcible Detwiner, and Um lawfal Detainer. 050, Possession of Real Property under Mortgage Foreclonure; Execution for. G51, Necessity of Demand for Powceesin, 82, Execution of Judgment in Quiet Title Action 4652, Ponsessory Process Not AMfected by Agreement of, of Declarations by Offcer, 654. Execution of Judgment io Reple 465. Execution on the Judgment Based om Mechanic's Lien 1650, Use of Force in the Execution of Possestory Process, 67, Liability for Palse Retura of Possestory Peocesn @68, Amendment of Returas of Pomessory Process, vilCHAPTER XXXI SHERIFF OR CONSTABLE AS PARTIES LITIGANT sece. 009. The Right of a Sheriff to Meinta tf 9 Proves 460, An Officer May Sue for Compeneation Whe 61, Right of Action in Favor of Sherif on Bonds 462. Right of Action to Protect Property Seized under Procers 083, When a Sheriff Cannot Maintain an Action for Lows Suatained, G84, Right of Action op Bail Bonds 485. Ordinarily Actions Not Maintainable by Deputy. 88, Right of Action to Recover Overpayment to Plaiatif 67, Joint Action by Officers 68, An Otlcer Paying an Execction in Hin Hands May Not Have the Benefit of ao Alia 609, Right to Sue Defautting Bidder at Execution Sale 870, An Action by Sheriff against Receiptor of Property. ST0A. Liability of Garagemen and Warehousemen tn Sheri for Goods Stored G11, Oticer'» Right of Aetion against Another Offcer Who Levies on Goods Held under Execution of Other Process 672, Right of Action of Officer as an Assignee of x Judgment, 612. Action or Defense Not Maintainable on Void Process OTA, Right of Action in Favor of Sheriff or Constable against Receiptor, 875. Rights of Action of Sheriff aguinat His Deputies 618, In Some Cesee Sherifa Surctien May Be Subrogated to Right of Action sagninat Deputy’ Sureti, 677, Advantages When Sheriff or Constable Te Defendant ST, ‘Sheriff or Constable Proper Party Defendant; Not Deputy 870, Liability of Sheriff or Constable for Extortion. 680, Liability for Statutory Penalty. 681, Liability of an Officer for Failing to Serve Process 82, Adnilesibility of Evidence in an Action againat an Oflcer for Failure to Perforea Hie Duty, 089, Inwuflcient Defenses. 884, aver im Actions against an Officer 685 Inatances when Officer Not Liable for Conversion. (88, Right of Action against Sherif for Wrongtot Seizure of Exempt Property. G87. Liability of an Officer for an Attempt to Make Levy on Exempt Property. fan Action Generally againat the Plain. viiTanue oF Contents 599, ibility of Oficer for Lerying upon the Property of a Stranger to Process, 889. Right of Action againat OMicers in Favor of Lien Holders 90. Conversion by an Officer in Levying upon Property Sold. in Violation of ‘atk Sates Taw. G01, Officer Not Required to Repay Money Collected in Some Inst 502. Tiability for Money Collected 909. When Replevin or Detinue Liew against an Officer 94, Maintenance of an Action against an Ex.llcer for Wrongful Seizure of Goods 405, Right to Maintain Action evea though Other Resnedies Exist 696, Mandamus to Compel an Oficer to Perform His Duty. UOT. Negligence Basia of Liability of an Office. G08 Noressty of a Demand an a Condition Precedent to an Action against an Officer. 599, Demand a8 Necessary to Set in Operation a Statute of Limitations 700, Summary Proceedings. FOL. Duty to Pay Over Money or Deliver Property Taken under reh War 702. Liability of an Officer for Levying an Exempt Property 702. Liability for Money Collected on an Execution and Dis 704. Measure of Damages as Applied against Oticers 103. Defenses by Otfiers. yurtement Thereof 1x72. 724 CHAPTER XXXII COMPENSATION OF SUERIFES AND CONSTADL Compensation of a Sherif! at Common Law. A'Sherill May Look to Whom for Ilis Compensation ‘An Oticer Nat Entitled to Compensation where the Services Performed Are ‘beyond the Territorial Limite of His Authority An Officer Tg Not Entitled to Make Profit on 1's toy. No Extra Compensation for Performance of Oficial Duty Compensation ax AMfected hy Irrogularity of Process Collection of Fees in Advance of Renilitinn of Service Money Arising from Execution Sales, Commissions May Be Charged on Amount of Execution Only Amount of Commissions on Sule ot Property Liability of Attorney foe Ofier's Compensation [Right of Sherif to Recover for Deputies Guarding Property Oicer Not Entitled to Charge or He Reimbursed Whe, Compenention of Deputies Statutory Feea Cannot Be Increased Double Stileage for Single Trip. ‘An Officer Ts Entitled to Collect Compenantion for Necessary Legal Services ‘only. Mtegal Fees Right of Assignment of Oficer's Salary. De Facto Officer Is Not Entitled to Compensation, ‘Aa a General Rule an Officer Ts Not Entitled to Collect « Reward Offered for Apprehension of Accused Persoos, perty in Hie LawfulSees, 131. 738, 729, 140. 741. 142, ma. 74, us, 1. m7 748, CHAPTER XXXII EXPIRATION OF TERMS AND REMOVAL OF SHERIFFS AND ‘CONSTABLES Expiration of Term of Office; Common Lav, Eifect of Linbility of Bondsmen where Sheriff Succeeds Wimeelt, Otfcer Levying Attachment Duty of Successor to Sel Duty of Outgoing Sheri to Deliver Property, Prisoners, a Succession in Case of Death, Resignation, or Abscondenco of the Sheriil Duty of Ex-sherif to Make Deeds to Land Sold Emect of Death, Resignation, or Removal uf Deputy before Completion of Execution of Process Deputy Sheriff as Not Entitled to Complete Process after Going Out of Office Substitution of an Officer in Pending Actions Going Out of Ofice as No Defense to Liability. Removal of Sheriff or Constable, Papers t0 CHAPT eR XXXIV CORONER'S INQUEST AND PROCEDURE THEREAT Duty of Coroner to Hold Inquest Time of Holding an Tequent Place and When Inquert to. Be Held, ‘The Coroner's Jury. Effect of Disobedience of Summons ‘Attendance of Witnesses, Swearing of Witnesses Contempt by Witnestes, Instructions to the Jury. View of Body. Examination of Witnersea, Public Tear‘Tanue of Contes Seca, 149. Autopay tn Connection with Inquest, 750. Reduction of Evidence to Writing, wt, Boston 2, nd Return, 752, Warrent and Arreat of Accused Paor Foxe. see cee 100 TABLE OF CABES oo ecessteceeeeeseeee sD Text Moons, ANNovaTions, axe Startres : sees O07 IRBEX cess ee nen ors Inoex 10 Fouws rem = 1035 xiiVOLUME TWO SHERIFFS, CORONERS, AND CONSTABLES (CHAPTER Xx § 598. At Ancient Common Law, No Levy upon Lands.—A¢ com: ‘mon law there was no means by which lands could be taken in sate: faction of a judgment, or debt due a private eitien, bat the Kine could take the land under an exceution on a judgment in his favor.* ‘This situntion wan remedied in Englaad by seme parlimentary eh sctments? ‘The reason that lands mere not subject to seizure ond tale under an execution at eorimon law, except at the instance of the King, was berause they were obliged to answer the duties of the fendal lord, and a new tenant could not be forced upon hime with fut his consent in the alienation and the subject waa not lible he ‘cause he was obliged by tenure ta serve the King in time of war, and ‘at home the Lords, according to the distinct natare of the tenure After the statutory changes were made, lands wee subject there syn, Mitey, 4 Mar # MC (ie) AT) Comin Soran, 3 Bs Ch) Bla) tin eet dee ety“ Mena Rte ising Moe ca, Eas hey 5519 Straus, Conon, aN Consraoues ‘under to be taken, after a fashion, in satisfaction of debta, ‘They ‘oat te taken under a writ called “estents” With. priseribed formalities, the lands of a'detor could be sequestered Dy the wae of the “extents” theough the instrumentality of the sheri! unt auch time as the rents and profits thereat would extinguish, the Abts for which they wore seized, Terenas that this procedure has hen revognized as being in foree in some of the states. However, it may he asserted, at this tom, all interests in laos may bo renched in satisfaction of « juizment in all jurialiction, differing only ia the method of accomplishing the rest. Tt is sometimes necestary to resort to proceedings im equity to subject equitable interests (0 the satisfaction nf judgment at law § 639. Writ of Execution as Applied to Zand.—It may be gen ly stated that real property in the United States ean be sub. jected to the satisfaction of judgments at law through a writ of ‘execution. ‘This writ is usually directed to the sheriff or constable ‘and commands him that of the goots and chattels, lands and tene rents of the defendant he cause tobe made the amount of the judg ment, including ioteresta and costa. Ta the absence of a controling statutory provision to the contrary, the exeeution ought tobe levied in the order directed; that is, frst the goods and chattel of the Aeferstant therein should be seized hefore reurt iy had to lands and ‘The rule requiring the exhaustion of personally found approva. iit did not originate in the Mugnn Charta, where it was provided "Neither we nor our bailiffs will seize any land or real for muy. Abe, so long as the chattels of the dsbtor are sufleient to pay the edt} or shall the sureties of the delice be distrained sp Tong. ax the principal debtor has sufeient to pay the debt; and if the prin Si dean ofan atm Mead Teun) Bet; Setar" Tahal,xrouniox—Lave rom Lana 5599 cipal debtor shal fil in the ‘rithal to pay it then the suretice shall ansiver the debt; andl i they will ey shall have the lands and rent of the deblor, unt they shall be atid for the debt which they paid for hi, wales the prines pal debtor ean show hime acquitted thereof against the aaid sore Tf an execution directs the offcer “to levy upon the real estate ods, and chattels of” the debtor or defendant tis an iregularty, ‘bot dove not avoid the writ® Ty those jaridictions where i it necessary to flea homestead declaration ia arder to male « claim of homestead exemption, aod lands have been levied upea under proces against the husband, the wife ean Sle the homestead, and then by appropriste proceedings compel the cer to proceed against the personaly of the debtor before resorting to the realty thas attempted to be exempted. ‘The subject of the manner of levying exeontions is now generally regulated by statute, end the statutes of the particular jurisdictions involved ought to he consulted and followed. At common In, tnce, ‘as we have soen ia the next precediag seston, that land wes not subject to levy, the execotion merely directed the offce to make the ‘money of the “goods aud chattels” of the defendant” Under the ‘modern legislative enactments, the general rale i that land is em braced along with goods and chattels, and where the word in the execution is directed of goods and chattels and lands of the defend fant, that is slleieat to authorize the scizure of any interest in Ind of whieh the exceution debtor is possessed Also it coms the ‘word "eects ia suflciently comprehensive in its sgniGeance as to Warrant the seizure of real estate, when such word i used in re spect to levying an execution on property ® However, under some statutory provisions, and peebapa independ: ‘ently thereof, the execution debtor has the right of election {0 which of his property aball be seized fst; whether realty or per sonalty:#© Tt has boea denied, however, that auch right om the part aig, eRe fa i Ss SAS ee he ah eee oe §o10 Suenrra, Cosovens, ano Cossrants of the judgment debtor existed at common law.!" Bat, ince, at ‘common aw lands were not subject to seme, iti dificult to sew how ‘the question could have arisen. It teem also, ander some tatutes, ‘hat the ofcershonld frst call upon the debtor for payment before vasking any levy whatever! Statutory enactments are to be ene countered directing that personal property be levied upon before Proceeding to the taking of real estate ™ ‘Where the right to have persoualty taken before resorting tor ty exists and is recognized, sach right may be waived. ‘This tay result where the debtor i guilty of making a fraudalent convey ance, or where he refuses to point out personalty to be asized, and the offcer i uninformed as to the debtors ownership of euch, or ite locetion, if known to be owned by the debtor. IE the exceution runs against joint defendants, the fact one has personalty and rea {and the other owns realty only, the latter's realty may be taken {in the frst instance ** AS to whether a retarn of a2 execution “nalla bona” onght to be made before levying on realty, showing by retum the absence of personal property, and as tothe necessity ‘of procuring the isnance ofan alias wrt to leny on realty or whet. fr the levy may bo made on real estate under original weit, are aatters calling for & entultation of local statutes. While whet we have said has been in eogard to executions, yet these rales would have an equal controling effect with regard to the levy of write of attachment. ‘The levy upon lands in the diferent jarisdiction ia & ‘matter subject to statutory regulation and the statutes of = par tloalar jurisdiction where involved should be consulted. § 40. Appraisal—In some jarisditions ater a levy of process upon real estate, the defendant has a right to have it appraised. "The parpose of sach isto prevent the sacrifice of property at pub: lie auction, The statutes jn these jurisdictions unully provide that there shall not be sale for lees than the appraised value oF n per centage thereof. The disobedience of the command of the statute renders the sale so made voidable 04. dey ¥ Doraog, Lt (Ky) 184 Over, Doaphety 1. Pita Mage, npr. Se sens sy rank up veeBxreunon-—Leve urow axon §§581-542 § 041, Sabdirision of Lands Bold under Rxecution.—Statuten are to be found in many jurisdictions providing for the offer of lands told under an execution in parcel frst, and then as « whole, and adopt the method from which arses the greater amount. Some times statutes are found wuthorizing the debtor himself to subdivide his lands before a ale, and sshere think theese, iti the duty of the sheriff to offer the land ax subdivided by the execution debtor AA failure to comply with the statute is an irregularity subjecting the sale to be set asides However, where property is of such eat facter that it cannot be subdivided, then it should be sold as a sn fle parel or piece § 542, Sullcient Description in Ofice's Return.—It isnot every Imperfect description of w pivee of land levied upon that will in validate the levy, or affect tho ele, and where & number of pieses of land are levied poo, and some imperfectly described, this will ‘ot vitiate the levy with respect to those perfectly drocribed. It tay be suficient description to deseribe land levied upon as a cee tain number of feet off of a piece of laud in a certain direction {§ 543. Prerumption at to the Correctness of Return When Land Levied Upon—The same presumption attaches in respect to a ler upon real estate as to other offeiat acts, and the presumption of regularity, as in other cates, generally obtains! "Where an of evs return i silent as to whether certain acts were performed, Presumption will be indulged that the offcer correctly and Teeaity ischarzed hia duty. So, if in the aale of lund, the offee's eturn is tilent as to whether of not it was appraised in pursoance to the manilates of a statutory enactment, « presumption will come into play, and it will be assumed that it wan 90 appraited; that iy the ‘tices performed hia duty Te may be stated as a general rule, in respect to recitals in an ‘officer's retura at to the performance of his oficial dati, it wil ‘be aatumed that auch recitals are true and the burden is on, who fever disputes the tame to offer proof therenf.!™ suo Procmas on Ectmpios Sa $8514, 515 Senne, Conowens, ano Constants § 644. Phintit Bay De Purchaser.—There is nothing in the In to prevent an execntion plaintif or execution ereditor from pts chasing at an eaccaticn sale. This i eepevially true where sash execution creditor has transferred his claim to nome ene elas” Te oes without saving that where the execution creditor many. por ‘hase, he may likewise male the purchase throne an agent >" How fever, where auch judgment ereditor porehoson at an execution sale tnd credits the bid on the jadjnont, it i helt that he ia not = por chaser for ealae®” "Where the exerution ereitae i the porchsorr ar sch, he isnot an inmooent purchaser or a hone file puseaoet for value in whose faver an estoppel may arise However, it has been held that where a jwlzment creditor pur chases at the execution se, he it penterted a against hnkwown latent equitin, and sehere thoes hai been oral asizmments nf sents and a subsequent collection thereof bythe asciguen, wan eld that such judgment creditor could eevover such rents aeeriine ate the execution sale from the tenants, notwithstanding the oral ignments prior to the judgment, there being na eecored taste ment showing such acrignment, and the judgment eveditor had wo notice of such assignment" Where auch execution ereditar pur chases at a sale under a void judgment on a renlery bom, he rant fsert any of the rights of an innocent purchaser *® Rye a salt be good, at which the execution reditar is a punvhase, there must be a fai competition of bidders, oat least an opportunity for sci bidding ** Where the execution ereditor is the purchaser at vale, ithas been held that it takes les or sighter ireteariica to aves the sale than in a ease where the purchaser i a thied party 2 § 045, Inadeqeacy of Prico—Piva Inregularties—Mere inne ‘qutey of price is in itself, iasuficint to set ade an execution vale,[Brecuniow Lave row Lawes soe fanless so grosoly inadequate as to shock the conscience ™ How. ver, iondequacy along with other elements may be aufient to tet tsa much aale™ And it in not necessary that there should be any fraud in connection with the inadequacy of the price for the tale tobe sot aside >” Tt was held aufGcient to oot aside a sle where it was not attended by the party defendant throngh mistake or mis apprehension, plus gros inadequacy of price, even though there tran no fraud ® Tthhas likewise been held that where the price re zived at the sale isso ioadequate as to shock the conscience or ua erstanding, such will in itself justify the court to void the sale™ ‘The inadequacy of price, however, does not prevent the passiag of title, and sale is not sabjet to collateral sttack by reason thereat, Dut must be attacked in'a direst action therefor ®® In determining ‘what isan adequate price the courta will remember that auch sale ina forced sale. After acknowledgment aod delivery of sheriff's ‘deed following an execution sale not mere defects and ierogul ties, however gross, but only fraod in the sale, or want af author. ity ta sul, can defeat tho title of sheriffs vendee™ A gromly aidequate pric, coupled with very slit circumstances, & sufilent to move the coart to set aside an execution sale, as where realty in sold vwithout resort to pereonalty = 4§ 840, Shorts Deed Prima Pacie Evidence of Title—A sherift's eed on an exccution sale is prima facie evidence of such sale™™ ipo Meyer 18 NE 20h 217 M208, os owe eT Shen Bare. Sie Pox Guiry, 29 Piaiy On, a8 er aT How 1NY) 004; Sete v ich toed ai tae nT SOMME Boe Bare aie ak ona sit Stuns, Conowens, ano Consrantes Where the shevifl's deed ia regular on ita fase and conforms to the atutes relating thereto, it i prisia facie evidence tbat the Taw has been complied with3® Ta other words, # valid sherif's deed a effective grant of the debtor's interest inthe property as a deed ‘would be feom the debtor himself®* A presumption exists that shevi's deed is valid, tnd therefore may not be colleterally at tacked ®% And where sheriff's deed iamed on an exeeuto duly acknowledged, is introduced in evidence, sich is prima facie tvidence of the grantee’s claim to property*© In collateral pro ceedings, acknowleilemest of sheri's deo it conclasive, except for fraud and want of power to sall*® However, the presnption indulged in voluntary sale in aid of description or identity of the property conveyed, based upon a supposition of the grantor's teotioa, finds no room for application in involuntary sale, where the owner intends nothing with reapeet tothe matter! However, where there is an imperfeet description of land in the levy of an fxecution, such defeet may be cured by a good description in the sherif's deed” Where the original record of a sheriffs sale was destroyed after the sale, but the dovd which the sheriff gave to the Dprchaser recited all the necessary elements of valid sale, soch ‘purchaser possessed valid title. § O47. Sheri's Deed—tis Recitals —In the absence of statute, a in other deeds of eonveyanee, no particular words are required to pass the title. However, it abould be gathered from the instrument ‘that the intention ofthe sheriff waa to pass the title and must cow tain such words as indicate auch intention It is pot necessary, tableas required by statute, that the sherif’ deed state the jue ‘ment upon which it is based, or upom which the sale was had, it being sulfcient to recite the sale was made on an exeention out of x competent court*® On the other hand, however, De vecnten nine Naty "Ah Giga Cage, 186 2H) Ma Dovan Wagon, 6 SW(28) Bou SWY2a) (ex Gir App) 128Barovnen Levy urow Laos 55 te show proper authority in the offcer for the execation of the sheriffs deed it haa beon held that such deed shovld show the jude rent, execution, levy and sale. In general, howerer, it would be Well for the offer, in order to avoid any qutation in tegard to the Yalidity of the deed, to eet out both the judgment and exesation which gave him authority for the execution of the deud.*7 ‘At the preseat time itn requited in most jurisdictions that the teed contain m rovitat of certain facta, such at Ue jdement, the court vehich reuloredl i and the subsequent procedure Teng lup to the sale, and, of eourse, the deed should comply therewith * ‘There should also be iaeluded, a6 required by most of the statutes, the correct name of the purchaser aad other parties in the proceed ings, but slight variations will not vitiate the deed" Ly ordce for fn omission of a revtal equieed by statute to invalidate the deed, rach omiion mut be onn that shoves the authority of the officer to make the sale. Where the recitals fail to comply with require sents, which do not go to show th officer's authority to make the sale, such requirements of sich statutes ae held to be directory and the omission of such matter will not invalidate the deed®) Where the recitation in the sherifPs deed ives the dates of the order for sale, and the deed antedating the judgment upon which the sale was taade, uch defect was held not (0 render the deed void Tm view of the foregoing, it should be Kept In mind that the only necessary facts which are mandatory under the statutes are those showing the sherifTs authority to exeeute the ded, and other de Feels are not fatal®® Where the purchaser receives a deed and 18 im pomesnion fur a number of years t has been held that if it ap pears from the deed that the sherif did what the statute required, the deed will be upheld Th regard to a sheriffs deed, in order for the property to pass to the purchater, it must be properly de seribed "Where the description i suflcient to identify the land, ta how Se, Barns Ri, Fe Me bint w Guy, to str Smears, Coronas, aso Covsrasiins although imprrfect, a sherife deed will not be held void on account thereof 8 Where the sherf's deed makes reference to some other ocament which deseriben the land, the description by reference it suficient® Where the dereription of the property intended. ram not be gathered from the deed itself, or by reference to another doc lament, such deed is void #7 ‘Where the description contained in the deed is accurate, hut it {inaccurate in the proceedings prior tothe derd, the decd vill no? cure such defecta®4 And it goes without saying that where thr shesif sella property other than that which he is authorize to sel such deed is void" However, where the deed eonress mote than the sheriff has authority t» convey, the devd is goml av to the amount for which the ofiecr bad authority to convey ® Tt should be noted that punctuation, or the want of it, # not decisive in eon Strung a sheri's deed, where the meaning in clear ™ Tt hardly ‘eed be noted that the recital in a sheriff's deed are prima facie fevideuce of the facta reited, but they ate uot conclusive, and may be disproved. However, this cannot be done collaterally ™ If a sberifs deed is void om ite face, it may be challenged in a collar eral proceeding.%* The rectal, ia order to be clothed with the prima facie presumption of verity, must be of the character that the oftcer is required, or at least authorized to make and the pre sumption under consideration does not extend to those that the fete PU SW 9 AU Tex Cie App Tor FEN Bul ee Soe Gams ate A Rat ari th Saat ME este tee masa eeExrouniox—Lare vrow Lana 5518 ficer has no authority to make, of to recitation of matters of foreign character °™4 4.048, Sherit's Deed Must Be Taken Out in Due Season.—Cen erally stated, where no tne in Bzed by ntatute, a sherds deed may istue any time after the sale, but it canoot be maade before the re turn day of the weit of execution, But reasooable diligence is de manded of a purchaser at an execution sale in perfecting his tite, Sind it ought to bo placed of record when perfected ® Where there ipaueh delay in the sance of the sherls deed that it would war Tat oue in assuming as a matter of law that auch purchaser had abandoned his le and that he didnot intend to take a deed from the sherif, und subsequent purchaser from the exeeation defend ant, without notice, who recorded hi deed, had superior ttle to the Droperty, although the purchaser at the sberify tale Bnally took the aber deed, i was held thatthe sherifPs deed did not relate Dock to the tie of the levy #2 “However, it has beem held that & purchaser of land at a sheritts sale acquires an inchoate tile by virtue of his bid aad the azcept hace thereof by the sheriff. Then the executing, ackuowledging, and Aelivering of the deed provides the purcbaser with evidence of his id, whi relates back to and takes effect as of the date of the sale” Tt has further been held that the right of @ purchaser to ‘serif deed isnot lost by the expiration of the tine within which ‘ sovond execution could isue om a judgment The sheriff may under statutory authority inde such deed after his term of offee bas expired “Although the purchaser may not immediately take & decd from the oflcer making an execution sae, ail he dors not lose his rights ‘oven though the same property is again levied upon at the instance of another judsnent creditor, and sold 8 second time, and the see fond purchaser takex a deed and records it before the frst purchaser ‘ectives his deed, ‘The reason is that on taking the derd the par. chaser’ rights relate back to the time of the sale, unless the delay fn so great as to work an abandonment, a4 fer example, eight elt tg Beh en tamer smock» Qual, 201 5 7, 5519 Smenrre, Conowens, ano Consrantaa yearn A sherifs deed is competent evidence in an ejectment oF ‘other action involving the title to the land, although not acknow ‘edged until after action is brought, where the vale was held prio to commencement of the ejectment suit** § 040, sherit's Deed—EMect of —A purchaser of land at a sher- iff’ ale a clothed with legal title from the day of sale. His deed, ‘whenever he subsequently obtains it, relates back to thet and gives bim all of the legal advantages that ean be given by the transfer of till. Te defeats any intzemediate converance or encumbrance that may have taken place between the day of sale and the making executing, and delivering of the deed hy the oficer? The fact that the ded is not made until after the expiration of the cedemp tion period or that a considerable lapse of time intervenes between the expiration of the redemption pered and the making of the deed ‘loes not change ths situation ®™ But if the delay in taking a deed Js so great as to amount to an abandonment, then the purchaser will lose his rights = An amended deed is given the vame force and effect as the original deed where itis made to remedy a defect in the former one.™™ Tis also true that while the purchaser has the advantage of hav. ing is dead relate back to the day of aa, he is alto subject to the disadvantage of holding the legal ile from the day of sale, and fone in possession thereof becomes adverse to the purchaser from that date, and the statute of limitations js initiated as of that day also Tk ia readily apparent thatthe execution of a deed in these smock ¥. Qualls, supra. 7 pi ae sae aetna nes Haok x. Morse, 18 tL Cowles ¥ Coley, suprago ‘circumstances in by the exercise of a bare power, dtconnested from fany interest in the Tend iteelf, whother the oflcer is ating under ‘an execution, o ether process, or under power confersed pon hint ‘i a commissioner by special statutory enactment, and by sictie thereof acting under the directions of the court, the rule is the ame, and the conveyance relates back to the ereation of the powee nd ip affected by the same incidents asi the execution of the deed land the creation of the power had been simultaneous." It is whol ly immaterial, so far ax the operation of the rule fs concerned with respect to the relation buck of the deed to the day of sale oF to the ‘ime the land in impresed with the lien, that the conveyance meee Indieates that the title transferred aa of a speed ate, The low controls, rather than the face of the deed.7® CHAPTER XXI § 850. Levy upon Fixtures —As to whether of not » fixture oF Samething located upon land! is annexed thereto in auch fashion oa to make ita part of the realty determines whether ot not it may be Fevied upon, of seized undee an attachment or execution as perso salty or realty. We have heretofore hud occasion to examine tha ‘avestion to some extont* The English and American courte, aa to what amounts to a fixture, have not always been in accord, "At an carly day in New York, it wna held that a stetue and’ sus dial ant their respective pedestals placed upon the ground formed a son, tion of the freehold, and were a part of the land, and that sch other ebjests as lose rails, oF ral fences, or piles of rails thet hed heen used in a fence, doors, gates, blinds, padlocks, ete, which were attached, or unattached but resting om the land hy theie weight, ‘constituted Gxtures, and therefore were a pat of the realey.™ the uli eases, However, formerly did not zo ao far, and i as held that a barn which rested upon blocks or staddles, if wore wot ete crwise attached to the freehold, was not a part of i Howeves, the drift of the adjudications in our day is aveay from ‘the eomsion Iaw doctrine to the effect that the determining charac teristic was the manner of annexation.* It i submitted that it way bye safely asserted that there is @ manifest growing tendency in thy cisions to modify the common law test of afitation of the clos, r@ F 31m 130 Okt 133; Pie "Waar ate,Bxeconon of Furrunat $8 551, 052 tel, One tendency of thie doctrine is to include articles such as Iachinery whose permanent annexation ix not manifested by the tse of bolts, screws, and the lke, but they are of sach weight and nature that the manner of their retention impressed by gravity is saficieat to give them the character of permanency and therefore ‘fizmtion to the realty. Likewise, even where things would tech- ically become fixed, within the former comioon lew rules, they are hot sich where their nature aod the uae for which they are intended Ato not indicate « permanent connection with the realty, and they can be removed. However, this divergonce of views is apparent merely, and is the result of the application of what has come to be recognized as the test of whether an article becomes & Gature whem hysieal apmexation fails ex a sufficient and adequate test. Also, lnder the modem deft of decisions, the intent of the parties plays tan important role in the solution of the question we have under consideration. So, now it may be said that annexation by weight and gravity in some caser may be suicient to make the article © part of the realty, but is not alwaye alone sulfiient, when the i tent of the partis is taken into consideration, I it should appear from the nature of the chattel that if used for the purpose for which it was designed, it would naturally and necessarily be annexed and become an integral part of the realty, then it becomes realty 551. Custom and Usage as Determining What Is a Fizture— He may be stated generally that custom and usage wey be looked to in determining whether aa article aMlzed to realty may be re sanded as cealty or personally § 882, Rulings Generally with Respect to Pistares— Articles, Almost too oumerous to mention, have, at diferent tiwen, beet trentod as fixture, but in view of the modern developed ile, as we have acon inthe fist section of this elupter itis doubtful if an ee ee = 4583 Sumnarrs, Conoxens, ano Coxenasts tended treatment with respect thereto wonld be helpful, and it ie sugnested that the officer or hia eounsel rather apply the ceneral rule laid down herein to the particular situation and determine therefrom whether or not an article in question is to be treated us really or personally. It seems, however, that an agreement be ‘oreen the parties, even though verbal, that an article placed pon for attached to realty shall remain pereoaalty, sich an agreement will be given foree and that sintus retained by the article? ‘The agreement may be either expres or implied § 059, ‘Trade Fixtares—The courte have been most libers! in tenting article annexed to realty as trade fxtres where they wére designed for eareying ona trade and, no doubt, could be levied upon as personalty and sold as such ® It seems that whatever is annexed to realty for the purpose of protecating a business or trade mi be regurded as persoaalty.1© Te guficienty illustrates the length to which the comparatively modern decisions have gove in this te gard with respect tothe liberality in holding what is trade fixture to nay that buildings have been generally held to be such.™™ That ‘Bank of Savioge +. Cal. Preased. Brick wit Su an, Eke ae el set ;Rxsounos or Fixronrs 5551 4 part of the building is occupied as « dwelling does not seem to change the rale in any reapeet™ CHAPTER XxIr Property of Onn Chae Canon Be Sil 99 Th S16 What Law Govern {1 Bnet ay Peed fo Be May Mae wt Rg § 854. Execution Sales in General—It isthe duty of the sheri, constable, or other offcer, having authority 40 to do, mho has le: ied upon property, real or personal, in obedience to am execution, to give the preseribed notice of male at aa appointed time and place ‘The purpose of this notice isto give publicity to the proposed sale to the end that bidders and others interested thereia may purchase the same, and to prevent « serifee of the property. Thin notice i ‘required in many jurisdictions by positive statutory enactment butBxecunon Satie $555, i dictated, in any event, by the policy of the lew. If the prec: ‘atin eegular upon its face, i is sulfcient authority for the sheritt (oF constable to hold the sale, and it ix wholly immaterial thet i may afterwarda be set ase. ‘The reat for thi in hat an ervone- fous judgment is the act of the court* If an execution is, upom ita face, irregular or legal, it affords no protection to the ollcer® Where, however, the lovy ia abandoned as to part of the prop: erty levied upon, natice thereof need not be given ™ § 055, Sale under Batisted Judyment—It in readily apparent that an execntion cannot lawfully be isucd upon a judgmeut that has theretofore heen paid aid satisied* It does not seem to be material how the judgment ia sated, whether it ls payment of ‘money or otherwise, ia 0 far as it being Ulegal to execute thereon ® Even after an execution has gone into the hands of an offer, if the jadgment is then satsfd, the power to make a sale thereunder ceases If, however, the natiafaction of the judgment is improperly ‘made and is thereafter set aside, the right to inue an execution thereoa and enforee the saune by levy and sale ln thereby revived? Passing to the consideration of the effect of a tale held under & Judgment that had been satiied upon the parcharer thereat, i ‘seems, by the weight of authority, that a satisfied or void judgment fannot be made the basis for valid transfer of tive by an exces tion sale to an innocent purchaser, and it ig not material whether te property that is the subject matter of such sale is real or a the poly wil ar eqn Cat 2 Hh (NY). ae Bo an ee S08 Yar 00; Sermon. v- Lyon, Mi Pe Am Iie 400; Preemen ow Jedymcat 5556 Sueaurrs, Conoweas, axe Constants Personal. ‘There is no warranty express or implied of quality of fille, ‘The rule of caveat emptor, it ought to be noted, applies only to execution tales made under a valid subsisting judgment’ How. ever, there are some authorities, particularly some early Peonay! Vania cases, holding that a purchaser nt an execution aale waa not fected by the fact the judgment under wich the sale was mate ‘heretofore had been sted unless he bad notice of mich satisfac tion Tt seems. however, that where a judgment has heen satiated, although not of reeoed, «sale therender conveys uo title It has heen held, however, that where the aatiafaction is aot of record in the action wherein the execution iemued, a purchaser at such sale ‘acquires whatever title the judgment debtor had in and to the pra erty provided the purchaser had no notice of the satisfaction Te seems also that the rule is different where executions are ised {a different counties and that when one of such executions is aa fnfed a purchaser in a diferent county may acquire « good tile At wsale under an execution in such county. If the judgment debt ‘or would avoid this elfoct It is necessary that he pay the costa ia ach county whereto an execution has been issued after having satisfied the judgment ® § 500. ‘The Rule of Caveat Emptor as Applicable to Execution Salen—A sheritf or cousteble in making a sale iva ministerial off cer and he is without power to make any terms except those author. Tao and prescribed by law. Hee only sells the judgment debtor's title and a purchaser at such sale bays the judgment debtors ttl, there is no title, he acquires nous,” ‘The Fule of caveat emptor i folly applieable to sales made under execution #2 —Difereutly Dhrased, it may he stated as a geoceal rule that a sheriff or conate IMIS SoM Ele tn i i ipa Sante ty GeRxscunow Sass 5556 le making a sele under an execution sells only the title of the execution defendant and such sale does not in any way operate to nt of the rights of the true owner or the bolder of « lien upon the roperty."€ Howecer, the rule is dierent where there is an ex Dress warranty made, but in the absence thereof, no warranty i "aed by implication of law." Tt ought not to be overlooked that in the event the property not subject to sale, then no ttle pars. This f the cose where the defendant in the execution held only an interest in the propeety not subject to seizure and sale, ax n contingent remainder, or & pos sibility of reverter, ora breach of w condition subnequent.® Tt may be stated as a general rule thet neither the plaintiff nor defendant in the execution ean be held to have impliedly made « warranty of tite to the property sold under an execution *7 ‘The execution defendant owes no duty to eren disclose defecte in the ttle of the property sold tinder an execution, and when he ie present at such sale and merely remains silent as to defects of title of the property, an action of deceit wil not Tie against him.!*= Indeed, it has been held that a bidder at an execution sale cannot be relieved of his bid on the ground that the execution defendant had no title to the'property bid on. ‘The reason underlying this ‘pronouncemeot is that the bid, when the property was knocked off to the bilder, became an irvevocable satisfaction of the judg. ment" ‘The rule that caveat emptor applies to seles of property imnder execution ia not ecumenical in ite operation to al situations; for example, it does aot apply unless the sale ie held upon execution sued upon a valiel jadgment.7e ie. Sualtng Retain Cow. date, a Conger Bee Min Ca¥. Gee BY AML'456, 10 Conn 348s "TN AL Jonen 4. Bars, 38 SCL LS erlr, OSE aout eu Sth Uy E3 Am Bi Ee Maghee'v Retin, 8 I ite Rat's: tap TB Mew SE heer ces SO an oir at ae a” Te So 787, 110 La S10) Reicheatach © M4 Ale oR 18 Am SUR TO Sexes, Pe a ae Soii Painter, Sarg & tutte Toy Piha bask Mere bare ede” bean ‘of etconh, 20 SW #05, 08 Me App nc. 48 ane 8 Sos Surmrrs, Conowens, ano Cowsrasias 4§ 957. Essentials of an Execution Sale in General—Usually, a sale under an execution in the absence of statute to the contenry, is not required to be conemed by an order of the court out of which the process issued.'® Tai im one of the distingushing. fen tures between an execution sale and a strictly judicial one. tn m juuivil sale usually itis required to be confirmed by the court or ‘ering it8® In some jurisdictions, in obedience to statitory ee ‘wirements, @ sale made on execution is required to be reported for confirmation to the court out of which the process toned It seems, however, that the failure to teturn, an execution, asd ‘obtain confirmation by the court ising the same. it cegaeted ‘as mere irregularity if the proceedinis ate other mise regular ad that this feilare will not vitinte the sale {1 hardly need be noted that before an execution sale ean be had, sich process mst have ‘been issued and levied, and thnt the sale should correspond with the advertisement or notice thereof given in pursuence to statutory provisions ™™| ‘An execution sale, ia order to be clothed with vality, mast be made in porwoance of a writ of exerution, valid on its face, directed to the oficer making the aale* However, it in unobjectionnbte tha 1 portion of the sale is made by the sheriff while another portion i made by hin deputy." Generally speaking, the offeer whe makes the levy and causes the advertisement of the sale to be given shoul make the sale and this s true notwithstanding the fart that his term of office has expiced before the sale date. ‘The foct that the levgiine 3 Dana(Ry) tid, Soland vs Barrett: kin om 2a pp ata: $80 Pmour wpe 48 86 Hoy ONY AL Ate Neto» Howin Sra, Ah. Aon 168 SW oat, OMt IA In LAS) 8 Sesh Amerian MorenoExeconox Sues sons offcer's successor bas been inducted iota offce does not change the rule®® ‘The reason for the rule that the offcer taking the levy ‘aay conduct the sale after the expiration of his term af alice ts by making such levy he aequices an interest in the propecty.2® Thin rae is carried so far that even in the enge of the death of the levy Ing offcer that his persoual representative may thereafter carry fat the sale? Te seems that in many. jutiuictiony either offcer making the Tory or bin sucseaor may vonduct the le where the subject matter of the levy ix real estate" but not 30 ‘where personaly is levied upon; in that case only the levying all er may hold the sale. ‘The rule would seem to be the same where personalty was held unvlor an attachment at the time the ofloer's term expired =™* § 058, Sales Should Be Made to Highest Bidder and for Cash, — Generally speaking, a sherif'a sale must be for eash > However, statutes are to be found authorizing the afleer to sell on a credit tnder certain conditions which, of course, would have to be to plied with. Likewise, where the parties consent or the exccuti creditor direts, the offcer may extend credit to the purchaser Te bas even been held that where an officer under an execution sginat nome administrators of an estate, sold some property of the wtarunt, 29 8" 5558 Sens, Conovees, ao Constasiss eta, aa price in excess of the amount due on the execution and. ‘with the consent and acquiescence of one of the administrator, the Dpurehaser wan permitted to eredit the excest on indebtedaesr due from the last mentioned administrator individually to the purchas auch an arrangement was auffciently Binding that the ofcer sould not thereafter recover the excess from the purchaser" IL would seem that the consent of the execution debtor isnot re ‘auired in order that the sheriff or constable may sell on a credit At the dietion of the execution creditor. When a sale is mate on 8 credit by virtue of an agreement between the parties it dock not jn any way impair the execution charnoter of the sale nor doce i abrogate the rule of caveat emptor ‘The reason we conclude that the consent of the debtor in not requited is because a eredit would probably realize a greater sum. But if « surplus above the amount mecesutry to satisfy the execution would be raised when the sale price was paid, then it would seem the execution debtor ‘ould demand it immediately from the execation ereditor, Where the sale is made for cash, the sheriff or constable haa bo power or futhority to isine a receipt until the money or ite equivelent i recived by him >? In the absence of en agreement of the parties to the eoatrary, ‘at is, the execution plaintif and posibly the officer, the shen cor constable making the sale ia not authorized to even take a draft cor other negotiable instrament, but thin may be ne by consent of ‘the execution plainti@’3+ Where a custom bad obtained to allow Durchasers at an execution sale occurring om Saturday until Mom ‘lay {0 make payment, it does not change the law, nor the dy of the ffcer to eallect at the time of sale ©. An eaecution creditor, Where he bids in the property, may have the purchase price ered ited upon the judgment, but be cannot eredit upon judgment the costa of the sale. ‘That is the exeeution plaiatits obligution. pet ‘marily, notwithstanding the fact that he may ultimately change it hip to the execotion debtor® Ieotene aanyfeni free TATE SE 6 is aie asapExecution Suse 5389 § 880, Time of Holding Sale, and Advertisement Thereot —Ordi nariy, sale may not be conducted on Sunday, bat in the absence of a latute to the contrary, it may be beld of » aosjudicial day, ts an cletion day, labor dey, ete, because execution sales are not Fegarded as judicial business2® "Where a atatute prescribes the hous of the sale, then a sale made at any other time is void, uuless itn by the consent of the partes, which would seem to cequire the consent of the judgment debtor” However, at common low, it seems that the matter ofthe time of holding the sate was lett large Ip to the discretion of the sheriff or constable and his sudzment swould not he disturbed so long as he acted in gnod foitha™. In the inence of a showing to the conteary, it will be presnaed that the oficercarvied out the sal, in all respect, in accordance with the Taw2™ “Hlowever, in New York it seems thot a sale must be made hefore sunset in any event. Te is the duty of an officer to adver tke an execution sale. ‘This is demanded by the policy of the Taw sa well au by statutes‘ Publicity of an execution sae ig indi Deasable, but failure to advertise is generally held not to avoid the fale: Slight inaccuracies, and immaterial errors fa the notice of sale will not vitiate the sale °° Tt is no ground of complaint on the Purchaser's part that sale was advertised before levy was made ‘upon the property ‘The controlling statute should be followed with respect te notice of time, place, terms aad conditions of an execution sae ‘Soacegs gee Saas cheese rate) 12,"56_ Sm Dee Tan: grayBrowe ¥ Bo 25 NW B94, 36 Gitte Wes Tex ly Rev aon 70 Aa Se Rep 378 Hae Skansen «Metre, 11 AW CTe Seley 208 Poe, at yee fe iee 99.900, 561 Snentrrs, Conowens, axp Coxerants § 600. Necenity for Delivery and Change of Postesion—The rule that there most in sales transactions be an immediate delivery tnd thereafter a continous chang» of possession is inapplicable to execution sales. ‘The rule mentioned hereinabove is applicable to transactions between private individuals and gives rise to a pre ‘sumption of fraud: The rule above announced is in many states, A subject of statutory enactment, and itis immaterial whether the above mentioned rate obtains in'n parti jurisdiction by ap tion of the common lave oF by virtue of legislative enactannt, ia 80 {far as its inapplicablity to an execution sale iy voncerne, accord ing to the great weight of autherity."® hia iy true notwithstant ing the aphoristie declaration mie by the English court at an early ‘ny that a sheriff's sale was requited to be “ready money and inne diate delivery." § S61. Lisbility of Sherif for Failing to Collet Sale Price —The sheri’s duty is clear that upon making the sale, in the absence of f latute or agreement to the contrary, that he must collect the sale price and if he fails in thin respect he is lable* A custom in the vicinity where the sale it held to allow a bidder at « sale on Satur day until Btonday following to pay does not chen feet the offcer’s responsibility Ifthe sherif accepta in payment auything other than money, or gives eredit, and unconditionally Aelivers the property to the purchase, he is able therefor, ax it he had collected the money.**" It would seem that the English court nid down a safe rule when it declared that a sheriff's sale should be only made for “ready money and immediate delivery." Te the Durchaser does not pay for the property bid in, the offeer's duty ‘he must immedistely offer it for resale, or readvertise ‘at another time. Tt seems he may parse either course EE cog, eta sind Cmte, ¥ Jeet ‘Skate BCom i Co Westerly 4 Slaps atExzovn0s Saunt 154 562, 93 But if the offer elects to resell on the stme day, he should do 20 within the hours Gzed by law for holding an execution sale; or, at most, the resale ought not be delayed unt the bidders have dis. pene § 062, Personal Property Should Be Sold in Parcels—It may be stated as a general rule that it ia iteguar and improper sod, in ‘many jorindletions, illegal for a sheri® or constable to rll property| fen masse and in the absence of special circumstances a sale eo masse cannot be justied "However, the sale of personal property by A sherff or constable in a sing lot ix ordinarily not regarded as Suficlent to void the sale Tn any event, the prime consideration that addresns ite to the offcer in the method of sale, whether en. rasse or ia lots or parcel, ip which will raise the most money, ‘nd thia i, in general, committed to the sound discretion of the off cers? It seems also that the parties may agree at to the manner ‘of ale, whether in parcels op en maste, and that the oflcer will be justified ia complying with auch an agreement § 86, Real Estate Should Bo Sold in Parcels—It is irregular snd improper, at Jest, for a sheriff or conatable to sll together Separate parcels of real estate*© The general rule is that where it is possible to do so, realestate should be sold in pareels Where ‘statute diteeta that realestate shall be aold at'an exceution sale in parcels, it it regarded. generally ay mandatory.™* However, there are holdings to the contrary, that such statutory enactments tare merely directory in character, and tht a tale made in disregard ofthe directions thereof with respect to the selling of parcels isnot void! ‘There may be some exceptions to the exaction of the rule treat RGye ches ante, Bayer 8 to 8, 8 Toe Roach, 130 AM one, 33 5060 Sunurrs, Corovens, ax Conan that real estate be sold in weveral parcels. This ia true where the Aescription bas been furnished by the debtor and the eotire prop tty in tenots i described aa single one ™* So too, where the tract Of Tana is competed of fractional parts of lots or mbdivisons and thas been treated by the debtor as a single tract or lot of land, & le thereof en mast ia not unjustified * ‘The execution debtor may waive his right to have bis property told in parcels” He has the right to direct how bis property aball be sold in the absence of fraud or eollsion.®™= Occasionally ir: ‘cumstances may eo formulate Uhemelves into a situation that woul ‘s#em to demand that realestate bo sold a a single tract aa, fo in stance, where the nature ofthe property is such that it is act divis {ble into parecls or parts without material injury to the debtor? thas even been held that under some circemstances aaale en masse ‘not be overturned even though resulting in great sacrifice, ‘The Principle which seemed to bave been given operation in auch cir fumatances was that mere inadequacy of price was not muffcient to set aside a sale ao Tong as it waa conducted fairly and judiciouly So, where a quarter section of wild land was sold aa a ingle piece for parcel, thestle would not be daturbed®® The general rule seems te be that it a necesary to show prejudice in order to succesfully ssseil an en masie aale of realty" A sound principle underlying those adjudications holding that property should be sold in parcels {i Wat no more of the debtor's Tand will be taken than iy neces tary “So, it has been Beld that a sale of the exeention debtor's land en maste it invalid if a lean amount thereof would have been ‘ficient In thor javiatictions, even where atatntory enactments are found, the courts constrae or bold that auch atatutes are merely directory it is held that the manner of sale, whether asa single piece of eal sswW(2d) 170, cor 16 SWi2d) 772, 125, Deiaware'Co_ Nath Bask 6-3, ay thas Gunty Hav Fee, eC atBurcunox Sis $564 ‘tate or in parcels, is committed to the sound diseretion of the of fxr! Consideration may also be given to the fact whether or not the property im encumbered, as having aa important effect upon a tale of the property oo masse" In those juriedictions where the matter is committed to the discretion of the offcer, his decision i final in the absence of fraud.® Where, however, ihe nd in told in parcels, tahould be offered in the smallest parcels possible, con alent with the proper divisions thereof The title papers of the judgment debtor may be Tooked to to determine whether or not the Droperty 8 a single piece or parcel However, this ix not neces farily controling ‘Where a nale of six tracts realized a sum exceeding that required ta satisfy the execution, it was the duty of the offer to eel only the necessary part of the sixth tract to raise the money to aatsty the execution, if the trast could have been divided ™ According to the weight of authority, if there are no bids for separate parcels, then the ete body of real estate may be sold as a single tract. However, no subterfuge can be resorted to by the oflcer to effet a sale in thin method bot it i» only where separate parcels have ‘een offered in good faith that they may be sold en mane” The safest course for aa offer to parwue into offer the property by both rethods of tele, but reserving the right, when it is Brat offered. to reoller it, and the method caising the largest amount should be ‘Adopted. ‘The general rule i that where the real estate to be sold fs an undivided lnteret,statotes requiring sales in parcels are inap- plicable § 804, Necessity of Having Property within View —It is neces: alnoat ¥ Hopan 48H 00, Os Rispatsy 8 B'495e5 Task Fi, Ov VO Nie Senn HONE BR Tad A. Ameot ¥. Brenan, A Tenn Ch 46 NW 8st" 2 SD as) Marcum’ 9 $508 Surnirrs, Conowrns, Axo Contrants sary that personal property to he sold under an execution shall be within the view of the offcer and bidders at the time of the sale to the end that it may be subject to examination by all persons who Aesire to become bidders, and alzo that it may be within the pomer ofthe officer, upon completion of the sale, to make delivery. ‘The execution debtor may waive the requirement of having personal property to be sold under an execution preseot thereat. "This wai fr may be ienplied as well x expresa This rule is inapplicable to real entate in the absence of controlling statutory enactment, and a ale of real estate ordinarily need not be made theseoo.™ OF ‘course, if the place of selling real state is Bixed by statote, then the statute mast be complied with an a rule. The weight of authority sustains the view that a sale of personalty ander an execution when the property is not present is voidable and not void? Ae to whether oF not personal property is preseat at a sale under given state of facts is generally determinshle ne a question of law by the court ‘The defect is not cured by taking an adjournment of the sale to go to and view the properts.7© Where the property ina short distance from the place of sal, the sale will be upheld 204 But where the tale in held some two hundred yards from the prop: erty, the sale in vulnerable to antailment.7® However, the lew ie ESS Ge EG Sana ay: te ce Te a'ha'bs fringe tak helae aa in aca 1. Baste Sengzin 28 BE 29,Bxecumos Sasa 5.565.507 satisfied and a valid sale wade if the property is sofiiently near at the place af ale that it can be asen and exaunined by the pro- peste buyers § 005. Property of One Glass Cannot Be Hold as That of Av- other—Property must be sold as of the class to which it belongs ‘ns realty or personalty, ag the ease may be, and a sale of one clase ‘of property 4s that of another renters the ale void, So. where rails fand ties, ee, of a tramway or railroad, and installed hobsting ma chinery of a mining eampany are sold as personaly, the sale may bbe avoided 7*" If any of the property is aold as personalty when it isnot such, then the sale ig subject to attack ato all property Sold 71" ‘Te seems, however, that chattels real are cold as person nity and this is the rule In the absence of « contrlling statute to the contrary.” § 566. Combination Sate of Realty and Personalty—It must be apparent from what haw already been aud ia the immediate: pre cenling sections that combination sale of realty and_personalty, together and indiseriminately, eaomot be made, aad any attempt 0 to do would result in making an invalid sale. So too, f any of the property is realty and all's told aa pertonal property, then the sale is absailable ato all 79 § 661. Diseretion of Oficor in Making Sales—Consierable lati tude of discretion i committed to the serif’ or constable in mak ing an execution sole. If it ia apparent that a sacrifice may be prevented By some delay, it fs bis duly to do so and to this end hie i authorized to refuse to aeeept a bid, and he may safely make a return that the property was not eld for want of biklers, and if « purchaser fails to comply with his bid itis the duty of the officer in $8568, 560 Sremis, Conokrns, ao Covsraates these circumstances, in making a retale, to exercise a restonable discretion Whece a resale is necessary, it is hin duty to track the Taw in so doing. ‘So, where property is struck off to a bid der who refuses to comply therewith, then it is clear that uo tale Jn made, and the ofter may make a return ancordingly 7 § 668, What Amounts to a Refasal to Comply by a Bidder.— What is a refusal ou the part of the bidder when property has been knocked off ie more than simple neqlest to pay. It takes on absolute, unqualifed refusal on the part of the bidder to pay the amount af his bid or purchase price, oF some other wn- equivocal conduct of equal signiteance, and in the absence of sich Absolute refusal or unmistakable, oF unequivocal acts oF eondict tantamount thereto, it becomes the oficers duty to tender a deed or bil of sale and demand the amouat of the bid before making a resale. In order to justify a sheriff or constable in making resale, itis essential that the purchaser shall have refused to pay the amount of his bid" In Peansylvania, however, it ems that the offeor is under no duty to make lender of deed, or other evi ence of ttle in case of o sale of personally” § 568. Duty of Sheri with Respect to Amount of Property old_—Ie isthe positive daty on the part of the sheriff or constable to sell no more property than is absolutely necessary th raise suf cient fands to satisfy the process in his bands, and in the alsence of conseat of the parties that more property may be sold than is ecessary to satisfy the proces, the wficer selling the same is lia ble to the injuced party therefor7™ It in the duty of the sifece in making the sale to clearly and distinctly announce the ehares ter and quantity of the property he offers for sale, particnlaly where itis realestate, as, for example, fee simple interest, a life estate, a term for years, and the like And if he fails inthis regard, resulting. in injury to another, he will be liable there ie Ht "Cog, 8 Met tot) Qt Mj Sart (as Solow Stony aa = Panis Sarin)Exscvn0s Satin $570 for It seems within the legal authority of « sheriff or conste be in making a sale to employ an auctioneer as au agent to cov dct the same, and collect the proceeds arising therefrom" The holdings aupporting the above and foregoing statement have met ‘with opposition *# 4§ 610. Sales by Sherif’ after Bxpiration of Term of Ofice or after Retorn Day of Execution —By the common ine an execution nan entie thing, and where n sheriff or constable has levied upon foods it nat only his duty, but be ia bound to complete the trans etion by selling them, Ue may not avold the eaneequenees of his failure to disharge this obliation by delivering the goods and th execution to hie wiceesor in fies, TE does not seen to be material how the tenure af the levying offcer ia terminated, by expiration resigaetion, or removal Especially with rerpeot to personel property, itn a general rule that it should be sold by the oficec tnaking the levy" The rule seems to be different with respect, teal estate and there it appears that the successor i office may sel the same Te should be observed there are cases making no distinction be tween real estate and personal property, and as to both clases only the levying oficer can make the sale, and if attempted by bia sue- cessor, the sale wil be ¥eid ‘There are eases, however, holding ait, Bony a 55708 Sirenrrs, Conowens, axe Coneranti that in case of real estate, itis the daty of the succeeding offer to sal the same *® Even the personal representatives of deceased ‘officer mho hns made a levy may rake the sule™® An offer may, after he has made a lery, sell property after the return day of the § 8108. Discretion of OMicer in Making Sale on Execution —It J the duty of the sheriff or constable to make the toney called for in an execution in hit haude if this ean be done by the reavon. Able exercise of judgment and skill within the law. To this cud Considerable ciseretion ie reposed in the elicr, but notwithstand ing this fact, he is responsible for a urslect of daty where it apjoare that ouch was the case even though the exercise of discretion ie involved" A bid may be made by letter to the sherif, or throne the instrumentality of an agency bat, in any ease, iis the duty of the offeer to annoanee auch hid and, of course, if there are no other bid, the propeety may be knocker off to such bilder. ‘There js no law requiving the bid to he made in person ot at the time fed place of eale™ ‘Where a statute provides that “no officer aball directly or ini relly bid for or buy any property which may be sold ander an texecntion by his deputy of principal, nr by his co-deputy,” that Ales not prohibit an officer holding a sale from offering a sherifed mount in bebalf of an absent bidder "t= Tint if the afer iv a Dacat, 5 Rare & QM 89, 0 Am Test tat Sr Bee Teds Mak 7 i oak ue rope tiene Ta th Sethe bdo one Of tle “Shore the eeaitr ively to be eww: Rearigy supraBxxcunos Sitea gon thorized to use bis discretion in bidding, and is not confined to Single ized amoust as a bid, then the sale i invalid Consid- ¢ discretion is committed to the officer in reesiving bide. Te is oot required to ressive the bid of a wholly irresponsible person Whom be Knows to be auch, of, the rule x the same with respect toa bid by 4 person unknown to the sherif, and he isnot required to receive such bid unless the bidder, when ealled upon, proves his responsibility? Tt, of course, the oficer's duty to sll to the highest bidder, but this means the bighest bidder who will comply with bis bil, ‘nd, if one al a sherfl's or coustable's sale bids Tor property, and fail to pay hin bid, the officer may expose the property again to public aale, or contra the noxt highest bid by receiving the money find making the title to such bidder But such resele must be Itamediate unless the sale i readvertised, and the property ean rot be auld to the next highest bidder unless this is done without delay. A delay of ove day to sell to the next highest bidder ‘validates the ante to him, and passes oo title to the property. Ita bid is wrongfully rejected by an officer at an execution sale, the bidder, seems, has one of three courses open to bin, and they are: To aue the oficer for damages, o bring an action for the property itself against the purchaser thereof to whom the oflcer ‘wrongfully sold it or the bidder may go into equity Uo have the fale set aside and the property again exposed for aale at hi bid And if no higher bid is offered, he is entitled to the property. {§ 971, Sheri Cannot Purchase at Hls Own Sule—It isthe gen- ral rule thet the ofleer conducting the sale by virixe of a veil of exceution cannot purchase at wich sale, and if he does 20, sich fet on bis part is vold®® Aud the eame role would apply where ion Sua, Conor, ano Constantin: the officer had an agent to make the bids for him? Ta other ‘words, the sheriff cannot become interested in euch sale an a buyer her directly or indirectly "+ Te has been held, however, that ‘where the oflcer does so act, each sale in not void, an ft may tually be beneficial to the ereditor, but is only voidable where there is actual fravd®™ Likewise it hea been held that it may be per iissible for the sheriff to become a puschaser at a sale where hr does so with the permission of the execution ereditor and debtar In regard to such bidding, the sheriff may not even act a2 agent ‘of snother to bid in the property? Inasmuch as the deputy sberitl is an official aller ego ofthe sherif, the same disability will extend to such ofleer. The making the bid through any agency will not ‘alidate a sale by an offcer to himself through such agency.?® Tt then been held, however, that where the depnty is not concerned in the sale he may become « purchaser at such vale although this seems a Title inconsistent ®® “After the offcer leaves office, even hough the property sold ia levied upon during his term, never- theless be may become « purchaser atthe ale if It iy not conducted by him! In the absence of a probiitory statute, a sale to a corporation, in which the sheri’ may be interested ss a stockholder, of to one who jaa relative of such officer, ia not thereby rendered invalidBxscunon Site i509, 573 1 does not take a great amount of consideration to conclude that 0 officer could not control bidders at an execution sale, whether ‘orporstion or individual. Unless he were the manager of the cor poration, how could he say it should wot become a bidder How fan he soy toa relative that he should not bid? Of course, the sts tation would be different if the transaction was fraudolent § 072, Bberits Crier at Sale May Parchace When.—Where the ‘heviff hiroe a crier or auctioneer to sll the property at the sal, and Alaring the sale such auctioneer oF erier would be the agent of the Sheri, it would seem on principle that the auctioneer could not at such sale, It is the general rule of law that an aactioncer fangot bid on or purchase or have any interest whateoever in the property sold at n salo cooducted by him® But, it har been held that while an ofjcer cannot buy property at his own sale under an execction, nor one to whom he delegates his power, but if an officer fuperintends the sale, ad employs a crier merely ax x mouthpiece, the later may purchase at thes tule of caveat emptor applies® Some authoriten go so far as to hold x bidder, who has net paid his bid, i not exonerated, even, ‘though the execution debtor had no title to the property sold, and the bidder could receive none In the absence of fraud the pur ‘hager is peesluded from asserting that the property or ttle thereto was defective, lack of quantity or quality, Ieee of ttl, or in regard to incumbrances on the subject matter purchased® Where, how: S Fueghe vient Sw 88198 ty Rc so? ie som Smrairrs, Conowens, aN Constants ‘ever, such execution purchaser in induced to buy by reason of the fraud of the execution creditor or debtor, he may seck relict on this basis, against the responsible person even though by an Invest igntion of public records such fraud can be disclosed? Misrepresoutation of a debtor in aa exteition, whose property i told by an offcer, as to the value of the property, where no part ‘of the purchase price will be coming to him, will not vitinte the sale * ased upon equitable principles, where there has been such a mis take in regard to the anouut of the property sold as would sub. stantially affect the interest which the purchaser sequited, the pnt fhaser may be eelioved from auch sale where he hes wet aetally paid over the purchase price® Where the puschaser makes « mis: take and there is no fraud oF misrepresentation of the dsbtor. ceed itor, or oer, ruch sale will not be ast aside ‘The modern tendency isto relax the rigid application of the rule of caveat emptor as to execution salen It is inapplicable toa void sale" Ta ease of mite in execution salen sonrta have aften refused to invoke the harsh rule of caveat emptor.™™ Where an execution sale is tainted with fraud, the doctrine of caveat emptor has been bed inapplieuble It seems the law demands—and rightly so—that fics’ con duct be characterized by the utmost good faith, and that thin rl Aemands that they make a full diselosare of defects of title or penn erty known to them when they offer property for sale nner am exeention!94 So, where an offcor sells property under an execu tion, to which the debtor has no title, which is known to the oer, Dut which fact the oficer does not dizslos, the purchacre may Fe ‘cover the purchase money remaining in the hands of the ofier. Te is submitted that the purehaser in these circumstances should be permitted to recover whether the officer has the purchase money ge regi 88 08 9 80 8 158 Any iy "7. Fallwrght «Sarton, 120 SW O42, thevetim altho Im the ase of Col Ta) hop Div 5, 04 3 Cras Ss, a'hu D ant Node 88 SLWarconow Sass son in his hands oF not#% It is tre that the eases of Com. v, Dickine son, and Bartholomew v. Warner have not met with favor tnd have been eriticized,*®" but it is submitted that these cases are mupported by reason and juste and well ecoguized principles. If the offer holding an execution sale knows the execution debtor has no title to the property, every principle of justice and honesty impels him to speak when he knows full well that the bidders are acting on the assumption in making their bit, that the debtor hes title thereto, and that a succesful bidder wil obtain a title to the property, The ofcer fails by his silence to correct a misapprehension, that be Knows is present in the minds of the bidders, Tt iv familiar lave that a deliberate failure to correct a delasion may coustivate fraud. § 074. What Constitutes a Bid; Accepted Bid Is a Selo—Tho auestion of what constitutes bid may sometimes arise, nd become ‘one of considerable importance. It may be defined, howevsn, as a mere offer to purchase but does not constitute a contract until nor cepted and may be withdrawn at any time before an actual eecept suce aud before the property ia struc off tothe bidder. An offeee Aeldiog an execution wale is without power to modify thi familiar rule of law, and it is without his ambit of authority to abridge this right of the bidder by any supposed imposed conditions For a withdrawal of a bid by the bidder being the exercise of @ lef right, no lability attaches for coste of readvertisement or Neither may the bidder impose conditions upon his Lid, and it isthe duty of the officer, when thi in attempted to doe regard the bid! Tf a bidder withdraves bis bid he cannot there: after insist upon same, or contend he is entitled to buy for the ‘mount of the withdrawn bid, He has no objection to enother sale otherwise To. 20 co ars, Hate eee Sa some Suueaires, Cononexs, ax Constames that ia made When a bid has once been accepted it then be comes a contract, and has the same force and effect an any other ontract ater acceptance, and neither party, without the consent of the other, may withdraw or recede from the contractual obligations thus assumed." When a bid has once been accepted und the trans, ‘ction thereby ripened into cootract, all prior bida are released As arule the matter of bidding and accepting sare isthe concern of the olffcer and the bidder, but where the execution creditors bid is accepted, he eannot be release from the consummated son, tract without consent of the execution debtor ‘The reason of this js because such sale amounts to a satisfaction of the julemenr, sea consent.8 No reason appears shy. if 4 bid is withiraen, an oficor may wot go back to the next highest bid, and thus crente a Dinding transaction, unless it too, before acceptance, is likewise withdraws. Creditors subsequently obtaining « judgment may not ‘complain that the alfcer failed to fad a bidder and constmmate ¢ rraale within the time prescribed by law. The only parties afected by such failure on the part of the oficer are the excetion detendant and the creditor eattled to the proceeds of sale. ‘The courts will fot attempt, a8 against an oficer falling to make a ease, to fasten pon Bim consequences so remote asthe Tosa resulting to helder of 8 subsequent judgment by reason of the dimination of the ects sxrowing out of the fullure on the part af the oficer to cause to be ‘made good the amount af the withdrawn bid! There is no formality required by law as to how a bid may be made or accopted; it may be oral, or in writing, oF by any gn indicative of an intent; any act showing an offeror an acceptance, asa wink, or nod! co SO ee i iN 50) zon; Otanan 8 Rilends