Sullenger v. Buck , 22 Kan. 28 ( 1879 )

The opinion of the court was delivered by

Valentine, J.:

Only two questions are presented by the brief of counsel for plaintiff in error, to wit: 1. Where an execution debtor has both personal and real property subject to execution, but not sufficient personal property to satisfy the execution, and the personal property is first levied upon and then the real estate, and the personal property is then advertised and sold, and afterward the real estate is advertised and sold, and all this is done under one and the same execution, is the sale of the real estate void because the levy thereon was made before the personal property was either advertised or sold ? 2. And in such a case where the personal property is levied upon, advertised and sold by the under-sheriff, and the real estate is levied upon, procured to be appraised, and is advertised and sold by the sheriff himself, the under-sheriff acting as one of the appraisers, is the sale of the real estate void because the under-sheriff acted as one of the appraisers?

We must answer both of these questions in the negative.

I. As to the first question, counsel for plaintiff in error seems to rely exclusively upon §448 of the code of civil procedure, but that section does not sustain him. It is merely consistent with his view, but is not inconsistent with the other view. Section 443 (Glen. Stat. 713,714) authorizes the levy of an execution upon any property, real or personal, not exempt. Section 448 provides that the personal property shall be first levied upon, and also what shall be done in case there is no personal property; but it does not provide, nor does any other section provide, what shall be done where there are both personal and real property, and where the personal property is not sufficient to satisfy the execution. We think that the personal property should be first levied upon and first sold,. but we know of no good reason why real estate might not be levied upon between the levy upon the personal property and its sale, provided the personal property is insufficient to satisfy the execution. No more real estate, however, should be levied upon or sold than would be sufficient, with the aid of the personal property, to satisfy the execution.

II. The mere fact that one of the appraisers of the real estate was the under-sheriff, we do not think vitiates the sale. Of course such practice is not to be commended, but upon what principle it would vitiate the sale where no wrong occurred, we cannot conjecture. With reference to the real estate, the under-sheriff had nothing to do as under-sheriff. He had no connection with the real estate except as an appraiser. In law, whatever an under-sheriff or other deputy of the sheriff does in his official capacity as under-sheriff or deputy, the sheriff himself does. But the converse of this proposition is not true. An under-sheriff or deputy does not do whatever the sheriff as sheriff does. Of course, a sheriff could not be an appraiser for himself of real estate levied upon and sold by himself, nor could he be such appraiser for one of his deputies; for in so doing he would equally in law be an appraiser for himself. But there is no reason in law why a deputy might not be an appraiser for the sheriff. In Maine it has been held that, “in a levy of real estate in which the levying officer was a deputy sheriff, one who is also a deputy of the same sheriff, is not on that account incompetent to act as an appraiser.” (Grover v. Howard, 31 Me. 546.)

III. Counsel for plaintiff in error, in his oral argument, raised the question that the sheriff’s return did not show that all the personal property of the judgment debtors had been levied upon before said real estate was levied upon. Under some circumstances such a return might not be sufficient, but under the circumstances of this case we think it is. But it is a rule of the supreme court generally followed, not to decide any question not raised by the briefs of counsel, and we shall dispose of this question under this rule.

The judgment of the court below will be affirmed.

All the Justices concurring.