Abbildungen der Seite
PDF
EPUB

the exercise of a sound discretion upon this important subject is manifest.1 cially known to the courts. Winter v. not be noticed judicially. Moore v. Coxe, 41 Ala. 207.

Worthington, 2 Duv. (Ky.) 308. The journals of a legislative body are A charge for commission or discount not evidence to the courts as to what on a bill received in payment must be has been enacted by such body. and in proved; courts will not take judicial the absence of other evidence, a court notice of a mercantile usage to allow it. is not warranted in finding that a gen- Ward v. Everett, 1 Dana (Ky.) 429. erai act has been passed by such legis- Depreciation of paper currency canlative body, where such act has not not be judicially known, but must be been published amongst the laws, and proved. Bell v. Waggener, 7 T. B. no copy of it can be found enrolled in Mon. (Ky.) 524. the office of the secretary of the terri- Principal and Interest.-The court of tory, who is the lawful custodian of all appeals cannot ex officio notice that original bills that have been properly damages equal to principal and interest, passed. Graves v. Alsop, i Ariz. 274. in a covenant for bank paper, dated be

Local Option in Counties.— Judicial fore the act allowing the recovery in notice is not taken as to the action of kind, are excessive. Owens v. Holliday, counties under laws allowing the exer- 7 T. B., Mon. (Ky.) 297. cise of local option, as to the liquor 1. Oleomargarine.- Neither court nor traffic. Morris v. Fraker, 5 Colo. 425. legislature can have judicial knowledge

The Habit of Smoking Cigars.—The of the merits or defects of oleomargacourt does not know judicially, that rine so as to be able to declare it, hygismoking a cigar, by one who has ac- enic value. Northwestern Manufacturquired the habit, is a necessity; and the ing Co. v. Chambers, 58 Mich. 381. sale of cigars on Sunday, in the usual Facts in the Record -An appellate course of the seller's business, to an court cannot take notice of facts in a habitual smoker of cigars, is in viola- record before it in deciding another tion of the Sunday law. Meuller v. case with which they are involved. State, 76 Ind. 310.

Chittenden vi Wilbeck, 50 Mich. 401. Initials of Name of Railroad Com- By-Law of Association.- A court canpany.-Courts cannot take judicial no- not take judicial notice of a by-law of a tice that a well known railroad company benevolent insurance association. Portis popularly known by the initial letters age Lake Miners & Mech's Benevolent of the words constituting its full name; Society v. Phillip, 36 Mich. 22. for example, that "C. B. & Q. R. Co." Means of public information should

the Chicago, Burlington & be provided, where judicial notice is reQuincy Railroad Company. So, held, quired to be taken of organizations inwhere those initials alone were used to corporated under a general act. Shumdesignate the party adversely interested way r'. Bennett, 29 Mich. 451. in a petition to take depositions to per- Evidence of usage on the part of four petuate testimony under the provisions railway companies, held, insufficient to of the code; and the depositions so establish a custom. Thompson 7. Mintaken were not admissible in a subse- neapolis etc. R. Co. 35 Minn. 428. quent action against said company, The court was asked, in the case at although someone filed

inter- bar, to take judicial notice of the great rogatories signed C. B. & Q. R. Co. losses which the Northern Pacific RailAccola v. Chicago etc. R. Co. 70 Iowa road Company had sustained by reason 185.

of Indian reservations and the settleYeas and Nays.-The courts cannot ments which had been made within the take judicial notice that the yeas and limits of its g:ant, prior to the final nays were not entered on the journal on location of its line, and from this to asthe final passage of an act appropriating sume that the selection of certain lands money, although the amount claimed was in lieu of such losses sustained. under it is not stated therein. Auditor Held, that the court could not take v. Haycraft, 14 Bush (Ky.) 284.

such notice. Elling c. Thexton, 7 Regulations of the United States Mont. 330. treasury department, by which treas- The courts of the United States canury notes made payable to a disbursing not take judicial notice of a justice of officer are not legally obligatory on the the peace in another State.

In re government until endorsed by him, will Keeler, Hemp. (U. S.) 306.

means

cross

JUDICIAL SALES-(See APPRAISEMENT; DEBTS OF DECEDENTS; EXECUTION; EXECUTORS AND ADMINISTRATORS; FORECLOSURE OF MORTGAGES; GUARDIAN AND WARD; JUDGMENT ; MORTGAGES ; PARTITION; SHERIFF; SHERIFF'S SALES; TRUSTS. I. Definition and Nature, 208.

1. Who Mary Purchase, 222. II. Manner of Sale, 209.

2. Bona Fide Purchasers, 223. 1. Who May Make, 209.

3. Title Acquired— Caveat Emp2. Notice, 210.

tor, 225. 3. Place, 213.

4. Rights of Purchasers, 229. 4. Publicity, 214.

5. Liabilities of Purchaser, 233. 5. Sale in Parcels, 214.

V. Setting Aside and Resale, 235. 6. Sale for Cash, 217.

VI. Redemption, 239. 7. Adjournment, 217.

1. Generally, 239. 8. Sale After Return Day, 218. 2. Who May Redeem, 240. III. Confirmation and Deed, 219.

3. Time and Manner, 241. IV. Purchasers, 222.

4. Effect, 243. I. DEFINITION AND NATURE.—A judicial sale is a sale made under the process of a court having competent authority to order it, by an officer duly appointed and commissioned to sell.! Strictly speaking, therefore, an ordinary sale on execution, or sheriff's sale, is not a judicial sale.2 But execution sales are often indexed and treated under the head of judicial sales, and they will be so treated in this article.

1. Williamson v. Berry, 8 How. (U. Execution or sheriff's sales have been S.) 495, 547. “A sale by authority of held to be judicial sales under the some competent tribunal, by an officer Indiana statute. Jackman v. Nowling, authorized by law for the purpose,” I 69 Ind. 188; Taylor v. Stockwell, 06 Bouv. Law Dict., tit. Judicial Sale. Ind. 505. And a sale by an assignee See also I Abb. Law Dict. 669, same under ihe voluntary assignment law, title.

duly confirmed by the court, was held The court itself is regarded as the to be a judicial sale within the meaning vendor in a technical judicial sale. of the Indiana act of March 11th, 1875. Harrison v. Harrison, Md. Ch. 332, 333; vesting the inchoate interests of married Hurt. v. Stull, 4 Md. Ch. 391, 393; women when the title of the husband Armor 7. Cochrane, 66 Pa. St. 308, 311; has been divested by a judicial sale. Bozza v. Rowe, 30 Ill. 198. And the Lawson v. De Bolt, 58 Ind. 563. A sale is, in contemplation of law at least, conveyance by a register in bankmade pendente lite. Rover on Judicial ruptcy is such a sale. Ketchum 1. Sales, $ 1.

Schieketauz, 73 Ind. 137; McCracken 2. Griffith v. Fowler, 18 Vt. 394; 7. Kuhn, 73 Ind. 149. So as to asGowan v. Jones, to Smed. & M. (Miss.) signee's sale in Ohio. Dresback v. 164; Hershy v. Latham, 42 Ark. 305. Stein, 41 Ohio St. 70.

What Are Judicial Sales.-A fore- So in several of the States, where closure by notice and sale. Sturdevant sales on execution are required by V. Norris, 30 Iowa 65. An adminis- statute to be confirmed by the court, trator's sale of land by order of court. they are generally treated as judicial Halleck v. Guy, 9 Cal. 181; Vandever sales. See Griffith r'. Bogert, 18 How. v. Baker, 13 Pa. St. 126. A sale of land (U. S.) 159, 164; Smith v. Arnold, 5 in partition proceedings, where it can- Mass. (U. S.) 414, 420; Eakin v. Hernot be divided. Sacket v. Twining, 18 bert, 4 Coldw. (Tenn.) 116; Baily t'. Pa. St. 199, 202; Hutton v. Williams, Baily, 9 Rich. (S. Car.) Eq. 392, 395; 35 Ala. 503. And in general all sales Curtis v. Norton, i Ohio 278; Thompmade by order or decree under direction son v. Phillips, Baldw. (U.S.) 246, 27o. of the court, and requiring confirmation The appointment of the sheriff inby the court, are judicial sales. Rover stead of a master or commissioner to on Judicial Sales (2nd ed.), § 29. See make the sale under a decree, will not also Chew v. Hyman, 7 Fed. Rep. 7. prevent the sale from being a judicial

II. MANNER OF SALE-1. Who May Make.—Where a sale is ordered or decreed by the court it must be made by the person designated in the order or decree, or under his immediate direction ;? but he may employ an auctioneer to conduct the sale in his presence and under his supervision. An ordinary writ of

one.

a

manner

Minnesota Co. v. St. Paul Co., 2 cause the court is asked to have it Wall. (U. S.) 609.

made to accomplish the objects of the Distinction Between Judicial and Ex- suit. In the proceedings at common ecution Sales.-In judicial sales as dis- law, from the commencement to the tinguished from execution sales, the fieri facias, no property is designated. court controls the sale, acting through At common law, the terms and manner the person appointed to make the sale of sale are regulated by law; in chancery, as through an agent, and the transaction they are regulated by the court. Ái is not generally complete or binding common law, if the sheriff

, in seizing the until confirmed by the court; while a property and making the sale, conforms sheriff, selling under an execution, gets to the established regulations applicable his authority by virtue of the writ, and to all cases (and he can sell in no must be guided in the sale by the law other manner), the sale is final and rather than by the court, by whom it is valid as soon as it is made. But in not even necessary that his acts should chancery, the sale is, in no case, bindbe confirmed, unless the statute so pro- ing and conclusive until it has been ex. vides. See Rover on Judicial Sales, 99 pressly approved and ratified by the 13, 28. Andrews v. Scotton, 2 Bland court. If it be made in (Md.) 629; McKee v. Lineberger, 69 wholly different from that prescribed N. Car. 219; Forman v. Hunt, 3 Dana by the court, it may yet be sanctioned; (Ky.) 614, 621.

or, if it be made in all respects conAll of the authorities just cited clearly formable to directions, it may still be state the difference between judicial and rejected. And hence it.is obvious that execution sales, but in none, perhaps, in one case it is the court of chancery are the distinctions more clearly drawn who is the real vendor, and in the than in the case of Andrews v. Scotton, other the sheriff, or executive officer of 2 Bland (Md.) 629. In that case, after the court.” showing that in a judicial sale the court Another distinguishing mark of juitself is vendor, the opinion proceeds as dicial sales, as differing from sales on follows: "But it may be said, if the execution, at law, is that they occur court be the vendor in sales made by only in proceedings wholly or partly in its trustee, would it not follow. for the rem. Grignon v. Astor, 2 How. (U. same reasons, that a court of common S.) 319; Beauregard v. New Orleans, law must be considered as the vendor 18 How. (U. S.) 497, 502; Rover on in sales made under its writ of fieri Judicial Sales, 9 31. And they are not, it facias by the sheriff? The cases are seems, affected by the statute of frauds, essentially different. The writ of fieri while execution sales are within the facias 15 a general authority or com- statute. Rover on Judicial Sales, Ø 23, mand to the sheriff to make so much citing Watson's Admr. v. Violett. 2 money by sale from the personal estate Duv. (Ky.) 332; Atty. Gen. v. Day, i of the defendant. By this writ the ex- Ves. Sr. 218; Blagden v. Bradbear, 12 ecutive officer of the court is commis- Ves. 466. See also Warfield v. Dorsey, sioned to seize the whole, any part, or 39 Md. 299; s. C., 17 Am. Rep. 562. so much of the defendant's personal 1. Rover on Judicial Sales (2nd ed.) property as may be necessary to raise $ 75; Freeman on Void Judicial Sales, the specified sum of money. No par- $ 29; Chambers v. Jones, 72 111. 275. ticular articles of property are

Where several commissioners are apdesignated. By statute this power pointed to make the sale, all of them given by the common law writ over must take part in making it, in the abpersonal estate has been extended over sence of any statute to the contrary. real estate. The real or personal estate Gross v'. Pearcy, 2 Pat. & H. (Va.) 483. with which the court of chancery deals 2. Blossom v. R. R. Co., 3 Wall. is, however, always in one form (U. S.) 196, 205; Williamson v. Berry,8 other distinctly specified in the pro- How. (U. S.) 495; Heyer v. Deaves, 2 ceedings, and the sale is made only be- Johns. (N. Y.) Ch. 154. 12 C. of L.-14

209

ever

or

execution directed merely to the sheriff as such, without naming him, may be executed either by the sheriff himself or by his deputy. But a sheriff cannot make the sale where he is the execution plaintiff and entitled to the benefit of the writ. If the sheriff's term of office expires after he has made a levy but before the day of sale, he, nevertheless, has authority to make the sale,3 and may be compelled to do so.4

2. Notice. --Such notice of the property to be sold and the time, place and terms of sale should be given as the law, or the court, in accordance with the law, prescribes. The object of the notice is to secure the attendance of purchasers and thus obtain a fair price, which is usually the result of competition. And where the notice is sufficient to attain this object, immaterial mistakes or irregularities are not generally fatal. But "if any mistakes or omissions occur in notices of sale which are calculated to deter or mislead bidders, or to depreciate the value of the property, or to prevent it from bringing a fair price, such mistakes or omissions will be fatal to the validity of the notice, and also to that of the sale made pursuant thereto.” 6

A minute description in the notice of the property to be sold is not generally necessary if the description is sufficient to identify it and inform the public so that they may know what prop

1. Wroe v. Harris, 2 Wash. (Va.) 3 Scam. (Ill.) 207; s. C., 36 Am. Dec. 126; Tillotson v. Cheetham, 2 Johns. 541; Lawrence v. Rice, 12 Met. (Mass.) (N. Y.) 63. See also Glasgow's Lessee 533. 7. Smith, i Overt. (Tenn.) 144; Levett So may his deputy. Lofland v. Ewv. Farrar, Cro. Eliz. 294.

ing, 5 Litt. (Ky.) 42; s. C., 15 Am. Dec. 2. Riner Stacey, 8 Humph. 41, and note; Smith v. Bodfish, 39 Me. (Tenn.) 288; Chambers v. Thomas, 3 136; Jackson v. Collins, 3 Cow. (N. Y.) A K. Marsh. (Ky.) 536; Collais v. Mc- 89; Tyree v. Wilson, 9 Gratt. (Va.) 59; Leod, 8 Ired. L. (N. Car.) 221; s. C., 49 s. c., 58 Am. Dec. 213. Am. Dec. 376.

5. Herman on Executions, 309, S. 199; 3. Tyree 7. Wilson, 9 Gratt. (Va.) Hoffman v. Anthony, 6 R. I, 282; s. c., 59; s. C., 58 Am. Dec. 213; Clark v. 75 Am. Dec. 701; Freeman on ExecuSawyer, 48 Cal. 138; Lofland v. Ewing, tions, $ 285. 5 Litt. (Ky.) 42; S. c., 15 Am. Dec. 41; The object of the notice thus being Edwards v. Tipton, 77 N. Car. 222; to benefit the debtor and protect his Evans v. Ashley, 8 Mo. 183; Purl v. rights, it has been held that he may Duvall, 5 Harr. & J. (Md.) 69; s. C., 9 waive it, and consent to a sale without Am. Dec. 490. And see also authori- advertisement. Burroughs v. Wright, ties cited in note to Tukey v. Smith, 18 16 Vt. 619. See also as to waiver of Me. 125; s. C., 36 Am. Dec. 705. But defects in notice, by appearance in compare Tenn. Bank v. Beatty, 3 court. Helmer v. Rehm, 14 Neb. 219. Sneed (Tenn.) 305; s. C., 65 Am. Dec. 6. Note of Mr. Freeman to Hoffman 58, Leshey v. Gardner, 3 W. & S. (Pa.) V. Anthony, 6 R. I. 282; S. C., 75 Am. 314; S.C., 38 Am. Dec. 764.

Dec. 701, 704. So far, however, as the And it seems that where a sheriff purchaser is concerned, it has been who has made a levy dies before sale, held that the statutes providing for notice his personal representative may make of the sale are directory merely, and

Read v. Stevens, Coxe 264; San- that the failure to give the required derson v. Rogers, 3 Dev. (N. Car.) notice cannot avoid the sale as against

a purchaser not himself in fault. Mad4. Clerk v. Withers, 1 Salk. 323; dox v. Sullivan, 2 Rich. (S. Car.) Eq. State v. Roberts, 7 Hals. (N. J.) 114; 4; 8. C., 44 Am. Dec. 234, and note; S. C., 21 Am. Dec. 62; Elkin v. People, Frink v. Roe, 70 Cal. 296; Burton

it.

L. 38.

erty is meant. 1

But the sheriff ought to give in his notice as full and complete a description of the property “as, in the exercise of ordinary diligence, it is possible for him to give, in view of its character, condition and location." 2

The time of sale should also be properly stated in the notice, and a mistake therein of such a nature as to mislead the public will render the notice insufficient. It is not necessary, however, that the exact hour appointed for the sale should be stated, if the time is fixed as between certain business hours of the day.4

Minn. 544

case.

Spiers, 92 N. Car. 503; Ware v. Brad- that a notice describing the tract of ford; 2 Ála. 676; Freeman on Execu- land to be sold as containing a matetions, $ 286. Contra, Hughes v. Watt, rially larger or smaller number of acres 26 Ark. 228; Henderson v. Hays, 41 N. than it consisted of in reality, is inJ. L. 387; Herrick v. Ammerman, 32 sufficient. Fenner v. Tucker, 6 R. I.

551; Wright v. Roussel, 5 La. An. 126. 1. Allen v. Cole, 9 N. J. Eq. 286; S.C., And “25 acres of land lying situate west 59 Am. Dec. 416; Pomeroy 7. Winship of the railroad and close to and adjoin12 Mass. 513; S. C., 7 Am. Dec. 91; ing the said Wayne station,” was held Stevens v. Bond, 44 Md. 506.

too indefinite a description in a deed In a notice of sale under a mortgage and other proceedings in recent Texas it is generally sufficient if the property

Allday v. Whitaker, 66 Tex. be described as it is in the mortgage. 669. Model Lodging House Asso. v. Boston, 2. Herman on Executions, 309, § 199; 114 Mass. 133; Robinson v. Amateur Freeman on Executions, § 283; Collier Asso., 14 S. Car. 148. So if the record v. Vason, 12 Ga. 440; s. C., 58 Am. Dec. is properly referred to where the facts 481; Harrison v. Cachelin, 35 Mo. 79. may be found. Candee v. Burke, i See also Frazier v. Steenrod, 7 Iowa Hun (N. Y.) 546; Judd v. O'Brien, 21 339; s. C., 71 Am. Dec. 447; Merwin v. N. Y. 187. Compare Martin v. Bald. Smith, i Green Ch. (N. J.) 182; Helwin, 30 Minn. 537

mer v. Rehm, 14 Neb. 219; Allen v. The following descriptions have Cole, i Stock. (N. J.) 286. been held sufficient as to location: 3. Fenner v. Tucker, 6 R. I. 551. "Situated in the northerly part of But it is otherwise where the mistake the city of Providence, being the lot is obvious and not of such a character of land No. 10 (ten) on the plat of as to mislead. Mowry v. Sanborn, 68 land of S. W., surveyed and platted N. Y. 153; Jensen v. Weinlander, 25 by H. F. W., July 7th, 1845." Fitz- Wis. 477; Gray v. Shaw, 14 Mo. 341; patrick v. Fitzpatrick, 6. R. I. 64; S. C., Chandler v. Cook, 2 McArthur (D. 75 Am. Dec. 681.

“Lot

No. 99 in C.) 176. Peter Beatty, Threlkeld & Deakin's 4. Coxe v. Halstead, 2 N. J. Eq. 311; addition to Georgetown, fronting 60 Northrop_v. Cooper, 23

Kaps.

432; feet on Fayette street and 120 feet on Burr v. Borden, 61 Ill. 388. Thus in Second street," the number of feet on the first case cited, a notice of sale "beeach street being correct, but the ad- tween the hours of twelve and five dition wrongly named.

Newman v. o'clock in the afternoon" was held suffiJackson, 12 Wheat. (U. S.) 570. See cient. In the second case, “between also Pollard v.

King, 63 Ill. 36. And it the hours of nine A.M. and four P.M.” has been held that in the notice of a was held sufficient. But where the sale of land on execution the county notice was simply for a sale upon a cerneed not be stated, if the description be tain day, without mentioning any parotherwise sufficient. Duncan V. Mat- ticular hours, it was held insutlicient. ney, 29 Mo. 368; s. C., 77 Am. Dec. 575. Trustees v. Snell, 19 Ill. 156; s. C., 68

The following descriptions have been Am. Dec. 586. Compare Thorwarth hiid insufficient: “Lot 5, block 39," V. Armstrong, 20 Minn. 464. without stating in what town or city. It was held, however, in a recent case Herrick v. Ammerman, 32 Minn. 544; by the supreme court of Missouri, that **All the land" of the debtor in a certain where the hours for making such sales county. Merwin V. Smith, i Green are fixed by statute, it is sufficient if (N.J.) Ch. 182. So it has been held the notice merely states the day of sale.

« ZurückWeiter »