Price Et Ux. v. Citizens State Bank of Mediapolis , 23 Okla. 723 ( 1909 )

The following points are raised in the brief of plaintiffs in error: (1) Insufficiency of the publication of notice of sale. (2) The order of sale, being returned 62 days after is was issued, is a nullity. (3) The sale could not be confirmed, because it was not made for cash, as advertised. (4) The sale did not take place on the date advertised. (5) The confirmation of the sale is conditional.

1. In the case of Thompson v. Higginbotham, 18 Kan. 43, Mr. Justice Brewer, in delivering the opinion of the court, said:

"This is a proceeding to review an order of the district court overruling a motion to set aside, and sustaining a motion to confirm, a sale of real property. These questions are presented by counsel for plaintiff in error in his brief: First, it is insisted that there was a failure to make due publication of the notice of sale. The notice was advertised in the Clay Center Dispatch. An affidavit of the attorney of the defendant was filed, stating that he had examined eight or ten copies of one of the issues of said paper in which this notice was published, and that a large portion of the notice, including the description of the property, was illegible. On the other hand, the return of the sheriff shows that he caused 'public notice of the time and place of sale of said lands and tenements to be given, over thirty days before the day of sale thereof, by advertising in the Clay County Dispatch,' etc. The publisher of said paper attaches his affidavit to the return, stating that said notice 'was published for five weeks in said newspaper,' giving a copy of the notice, and including in his affidavit the issue of the paper referred to in the prior affidavit. A like affidavit was also afterward filed by the foreman of said paper. Upon these facts we think the court properly overruled this objection."

In the case at bar, the purported affidavit of E. K. Gaylord, publisher, is neither brought up as a part of the record by means of a bill of exceptions nor case-made. We have been unable to find any statutory provision making the affidavit of the publisher a part of the return of the officer or a part of the record.

In cases where service is had by publication, it is not deemed complete until it shall have been proved by the affidavit of the printer, or his foreman or principal clerk, or other person knowing the same, and no judgment by default is to be entered on such service until proper proof thereof be made and approved by the court and filed. Section 4279, Wilson's Rev. Ann. St. 1903; chapter 66, art. 6, § 81, Code Civ. Proc. We have been unable to find any such statutory requirement relative to notice of sale, under any character of execution. Then all that we have before us here for review relative to such notice is the return of the sheriff, which recites that he "did cause public notice of the time and place of sale of said lands and tenements to be given over thirty days before the date of sale thereof, by advertisement in the Oklahoman, a newspaper printed in said county."

Section 4648 (chapter 66, art. 20, § 450, Code Civ. Proc.) Wilson's Rev. Ann. St. 1903, provides that "lands and tenements taken on execution shall not be sold until the officer cause public notice of the time and place of sale to be given, for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county. * * * All sales made without such advertisement shall be set aside, on motion by the court to which the execution is returnable." With the record only before us for review, the officer's return therein reciting that he "did cause public notice of the time and place of sale of said lands and tenements to be given over thirty days before the date of sale thereof, by advertisement in the Oklahoman, a newspaper printed in said. county," which is the same language as the return in the case of Thompson v. Higginbotham, supra, to wit, that he "caused public notice of the time and place of sale of said lands and tenements to be given over thirty days before the date of sale thereof, by advertising in the Clay County Dispatch," we are unable to say that the nisi priuscourt committed error in holding that the notice provided for in section 4648, Wilson's Rev. Ann. St. 1903, had been complied with.

In the case of Thompson v. Higginbotham, supra, in addition to the return of the officer being before the court when the sale was confirmed, the affidavit of the attorney of the defendant, stating that he had examined eight or ten copies of one of the issues of said paper in which the notice was published and that a large portion thereof, including the description, was illegible, and also the publisher's affidavit, stating that the notice was published for five weeks in said newspaper, giving a copy of the notice, and a like affidavit by the foreman, were introduced, and were properly made a part of the record. From this Kansas case, the opinion in which was delivered by Mr. Justice Brewer, it clearly appears that such a return as was made by the officer in the case at bar was a sufficient record, and the affidavits, pro and con, are not a part of the record here, not having been made so by bill of exceptions or case-made, and whatever affidavits or evidence were before the court below are not before this court for review. We accordingly conclude that, as to the notice of said sale, there is no error in this record.

2. In the case of Norton v. Reardon, 67 Kan. 302, 72 P. 861, 100 Am. St. Rep. 459, it is held:

"(1) After a decree of foreclosure has been entered in an action to enforce a mortgage or other lien, the execution for the sale of the property charged is special, and must conform to the order of court. (2) Section 4915, Gen. St. 1901, providing that the sheriff shall return a writ of execution within 60 days from its date, has no application to executions in special cases, mentioned in the fourth subdivision of section 4892, and in section 4994, Gen. St. 1901. (3) A decree was entered in a foreclosure suit ordering real estate to be sold according to law to satisfy a mortgage lien. The sheriff sold the property under an execution issued by the clerk six days after the return of the writ. The sale was confirmed.Held that, it being within the power of the court to order the property sold under a special execution at the time it was sold, the confirmation of the sale rendered it valid, being an approval of that which, as to time of performance, the court had power to order in the first instance, within the principle announced in the second paragraph of the syllabus in Thompsonv. Burge, 60 Kan. 549, 57 P. 110, 72 Am. St. Rep. 369."

In this case, the execution appears to have been under the class of an execution in special cases (subdivision 4, § 4632, Wilson's Rev. Ann. St. 1903 [chapter 66, art. 20, § 434, Code Civ. Proc.], and section 4709, Wilson's Rev. Ann. St. 1903 [chapter 66, art. 20, § 511, Code Civ. Proc.]), and the contention that the execution was not returned within 60 days from the date the same was issued, but on the sixty-second day, to wit, the second day after the return day, appears to have been an irregularity that would be cured by order or confirmation.

3. Section 4649 (chapter 66, art. 20, § 451, Code Civ. Proc.) Wilson's Rev. Ann. St. 1903, provides:

"If the court, upon the return of any writ of execution, for the satisfaction of which lands or tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such lands and tenements; and the officer, on making such sale, may retain the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto, agreeably to the order of the court."

From this section it appears that it was contemplated by the statute that, when the sale was made for cash, the same should be paid into the hands of the officer, who should retain the same until the court should examine the proceedings of the officer in making said sale, and in the event he confirmed the sale, it should then be the duty of the officer, under order of confirmation, to make to the purchaser a deed to such lands and tenements, and pay the proceeds of the sale to the person entitled thereto, in accordance with the order of court. Suppose the sheriff should make the deed under this order, and tender the same to the purchaser, and he fails to pay the bid within the three days, would it not be necessary to have an order or decree of court canceling said deed before ordering a resale? We do not believe that the case of Norton v. Reardon,supra, goes so far as to justify the court in making an order for a mortgage foreclosure, to the effect that the deed should be made and tendered before requiring the purchaser to pay the amount bid to the officer. Clearly, when the bidder purchases at the sale, and proper memorandum is made so as to take the sale out of the statute of frauds, the liability of the bidder then attaches, and, before the bidder or purchaser is entitled to have a deed tendered to him, he must first comply with the law, and pay the money to the officer.

4. The reasonable construction of the sheriff's return is that the sale took place on February 10, 1906, the date on which it was advertised to be held, and consequently there is no merit in the contention that the sale did not so take place.

5. The plain import of the order of confirmation is that, under said order, the sheriff was to make and tender to the purchaser a deed, who had three days thereafter within which to pay the balance of the purchase money to such officer. In this we think there was error, it being clearly in conflict with the statute.

The judgment of the lower court is accordingly reversed, with instructions to set aside said sale, and permit an alias order of sale to issue, and proceed in accordance with this opinion. Let the costs of this appeal be equally divided between the parties hereto.

All the Justices concur.