Gathwright v. Hazard , 56 Ky. 557 ( 1856 )

Judge Stites

delivered the opinioD of the court:

This proceeding was had in the Louisville chancery court, in behalf of the appellees, to vacate and set aside a sale and conveyance of a house and lot made under a judgment of that court, and in virtue of which, the appellant claims title to the property.

Upon hearing, the chancellor held — that the sale and conveyance should be set aside upon the appellees paying to appellant his purchase money and interest, together with what expenses he had incurred, and a bonus of fifty dollars for his trouble, and from that judgment he has appealed.

It appears that, by the decree or judgment authorizing the sale, the marshal was authorized and directed to sell only so much of the property mentioned therein as “would pay to the plaintiff the sum of six hundred dollars together with interest thereon at six per cent, from the 16th April, 1852, until paid; and, also, his costs by him herein expended, including the costs of sale.” The property was sold on the 3d of December, 1855, at the price of seven hundred and ninety-five dollars on a credit of four, eight, and twelve months, with interest from date, and appellant became the purchaser. Pie executed the bonds as required, and paid them in March following, and thereupon a deed was made to him for the property. The amount of debt due, including interest to the day of sale, was $750 80. Add to this, $30, as a reasonable estimate for costs; the taxation of which does not appear; and it appears, that the sum realized, exceeded the amount of debt, interest, and costs, $34 20. This, in our opinion, was a substantial' excess affecting fatally the sale. That the excess was near, if not fully, this sum, is evident from Depper’s statement as to what he bid for the property, and the order of court appropriating $26, to the payment of taxes, after the leave granted to the plaintiff to withdraw his debt, interest, and. costs, and the Marshal his fees.

It is thus apparent from the record, that the officer making the sale, went beyond his authority under the order of sale, and equally so from the testimony, that such exercise of power was not only uncalled for, but seriously prejudicial to the appellees.

The lot sold had upon it two habitable tenements, • and was easily susceptible of division. The testimony of Depper, Hare, and Hazard, satisfactorily shows that the front half or part of the lot excluding the houses erected by appellees, would, if sold, separately, have brought the whole debt and costs.

1. Sheriffs have no power to sell, under execution, more real estate than is sufficient to satisfy the debt, interest, and costs required to be made upon the execution. If more be sold, the sale is invalid. The same doctrine applies to sales by commissioners under decrees in chancery. (Blakey vs. Abert, 1 Dana, 185.) . 2. The 812th section of the Civil Code does not change this rule, except so far as the defendant may consent to a sale of more than will pay the demand. The officer has no discretion of his own to sell more.

It has been often decided by this court that a sheriff has no right, in virtue of an execution, to sell more property than sufficient to satisfy the debt, interest, and costs therein; and such sales, where there was a substantial excess, have always been held invalid and void. The same rule has been likewise applied to similar cases arising under sales made by commissioners in chancery acting under a judgment or decree of a court of equity.

In Blakey vs. Abert, 1 Dana, 185, where there was a bill to enforce a lien upon a tract of land for the purchase money, the court below decreed a sale of “so much of the land as should be necessary to pay the debt, interest, and costs of the common law judgment.'’'’ The commissioner sold the entire tract for a larger sum than the debt, interest, and costs. This court held that he had no authority so to do, and said that “his act was void, as much so, as the act of a sheriff who sells more land under execution than is required to pay the debt.”

The civil Code, (sec. 812,) does not help this sale nor impart legality to an authorized act of the Marshal.

It provides that, “in the sale of a small portion of real estate, if the defendant does not require less than the whole to be sold, where less will produce the debt, the officer making the sale may exercise his discretion with a view to the interest of the defendant, whether to sell the whole or less than the whole as he may think it advantageously susceptible of division,” &c.

This regulation applies as well to sales under execution, as under judgments in equity; but is, in our opinion, limited to cases where there are no special directions or restrictions in the order or judgment authorizing the sale. Where, as in this case, the chancellor assumes, as he had the right to do, to direct specially how much of .the property should f,e sold, no discretion is left the officer acting under such order. It is his only authoritjr, and he must gjjgy jt-

The report of the Marshal shows that he assumed to exercise his discretion as to dividing the lot sold; and the proof shows that this assumption was greatly to the prejudice of the appellees.

This exercise of power on his part, was virtually, if not in terms, withheld from him by the order of sale; and has, as we have shown, resulted fatally to the sale and conveyance thereunder.

The chancellor properly put the appellees upon terms to pay to Gathwright the sums mentioned in the judgment, as he was entitled by substitution to the rights of the mortgage; and, also, to a reasonable compensation for outlays and trouble attending the transaction.

Judgment affirmed.