Smith v. Meldren ( 1884 )

Chief Justice Mercury

delivered the opinion of the court, November 10 th, 1884.

It may be conceded as a general rule, in case of a sale of chattels on execution, the sheriff should sell the articles separately or in parcels. This, however, rests on the assumption that the property would thereby produce a larger sum than if sold in a lump. Whenever in fact the sale is honest and fair, and the parties to the execution request it to be sold in the latter way, and no one desiring to bid asks to have it sold otherwise, the sale cannot be declared void. Due regard should be had to the character of the property, and the sale, if other creditors are interested, should be so made as to produce the most money. We have recently recognized the validity of a sale, free from fraud in fact, of the whole contents of a drug store, in a few lots. [Yost v. Smith, Kline & Co., 9 Out. 628.]

The character of the articles in this case, was such that they were very properly sold together. They constituted a lot which were used together for one purpose. A separation would have destroyed the use and purpose for which as a whole they were designed. Moreover, as the plaintiffs in error deny that the defendant in the execution was the owner of the property, they are not in a condition to take advantage of a mere irregularity in the sale which was made in a manner satisfactory to all interested therein: Klopp v. Witmoyer et al., 7 Wright 226.

Although there may be in the portion of the charge covered by the second assignment, an expression which, if taken alone, would be error, yet in view of the whole charge we do not think it misled the jury.

It was within the power of the court to put the verdict in proper form. This is what it did. The sum designated is such as to give the plaiutiffs in error no just cause of complaint.

Judgment affirmed.