Reynolds v. Hoxsie , 6 R.I. 463 ( 1860 )

At the common law, a sheriff charged with a fi. fa. was obliged to proceed at once to seize and sell the goods of the execution debtor, having full power over the time, place, and mode of sale, in order to enable him to obey the exigency of his writ. He was not bound to sell at auction; but on the contrary, if he sold in this mode, could not charge against the goods levied the expenses of that mode of sale. If either party to the execution wanted the goods sold at auction, the party requesting it was bound to pay the expenses of sale out of his own pocket.Woodgate v. Knatchbull, 2 T.R. 148, 156, 157. The officer was not to consider whether it would be of advantage to the debtor to delay the sale or not, his duty being to sell immediately; and if the court found him colluding with the debtor for the purpose of delay, they would fix upon him the whole debt and costs, upon attachment. Ib. 157. If he could not find purchasers for the goods levied, or for enough of them to satisfy the debt and costs, his duty was to return the fact upon his process; and if avenditioni exponas was issued to him, he might make the same return to that; since, if the plaintiff in execution was dissatisfied with the return, he might set up a purchaser of the goods himself. Leader v. Danvers, 1 B. P. 359, 360. If the goods were sold at auction, it was his duty, however, not to allow them to be sacrificed for want of bidders; and if a small sum in comparison with their value was bid for them, he was to keep them, and return that he did so for want of buyers, and wait for a venditioni exponas, which, in such a case, was construed to mean: "Sell for the best price you can obtain." Per Lord Ellenborough; Keightley v. Birch, 3 Campb. 521, 523, 524.

In this state, the sale of goods upon execution is regulated by statute, with more attention to the interests of the execution debtor. The sheriff is to sell the goods at auction, and not until he has advertised them for sale at least ten days, in order that the debtor may have that time in which to redeem them, as well as to ensure them against sacrifice. With regard to real estate, which may be levied upon and sold here on execution, the statute still more carefully guards the rights of the debtor, requiring the officer to "set up notifications of said levy in three or more public places in the town where said real estate lies, for the space of three months before the same shall be exposed to sale, notifying all persons concerned, of the levy and intended sale of the estate, that the owner thereof may have an opportunity to redeem the same;" and also to "notify said sale, by causing an advertisement thereof to be published once a week, for the space of three weeks next before the time of sale, in some newspaper in the county where said estate lies; and if no newspaper be printed therein, then in some newspaper printed in Newport or Providence." Rev. Stats. ch. 195, sects. 8, 11.

The principal purpose of the notifications required to be posted up of the levy and intended sale, both of goods and real estate, is thus declared to be, in substance, with regard to the former, and in words, with regard to the latter, "that the owner thereof may have an opportunity of redeeming the same." Incidentally, however, the notifications served to give notice of the time and place of sale; and with regard to real estate, until the October session of the General Assembly, 1835, were, and with regard to personal estate now are, the only mode of advertising the time and place of sale, positively required by statute Under these statutes, the practice has been for officers charged with executions, for good cause, to adjourn sales of property real or personal levied upon by them, duly advertising the change of the time of sale, that there may not be a failure for want of buyers. Such power of adjournment was always deemed incidental to the power to sell; the whole of which was intrusted by the execution, under the law, to the officer. No other order was ever issued to him than the execution; a venditioni exponas being wholly unknown in the simplicity of our practice. Within the limits of the law, the officer exercised his discretion with regard to the time of sale; and as no positive publication of the necessary power of adjournment existed upon the statute book, adjourned the sale, from time to time, as the exigencies of the case required. If he could not, from storms or accidents, reach the place of sale; if reaching it, from want of buyers, he could not sell, or could not sell except at a great sacrifice; in fine, if from any cause, consistently with the performance of his general duty under the execution, the sale could not take place at the time originally appointed, he appointed another time at which it might. Nor was this practice peculiar to ourselves; but in other states this same incidental power was not only possessed, but in proper cases required to be exercised, by sheriffs charged with sales upon execution, as a part of their duty. Warren v. Leland, 9 Mass. 265, 266;Tinkom v. Purdy, 5 Johns. 345; Mc Donald v. Neilson, 2 Cow. 159, 170, 185, 190, 191; Russell v. Richards, 11 Maine, 371; Lantz v. Worthington, 4 Barr, 153; Richards et al. v.Holmes et al. 18 How. 147. No doubt, officers were liable to either party to the execution, for the improper, and especially fraudulent exercise of this power, to his detriment; but that they were deemed to possess and actually did exercise it, long before our statutes incidentally recognized it as possessed by them, is perfectly notorious.

We do not by this intend to sanction needless adjournments of such sales merely for the purpose of delay, and especially not adjournments made by an officer in collusion with either party, to serve the particular interest of that party, to the injury of the other. When such cases arise, they will be dealt with according to their circumstances; it being perfectly understood that there cannot be a wrong, under our jurisprudence, for which the law in some form does not provide an adequate remedy. In the case at bar, there was not only no collusion of the kind adverted to, but the delay of sale caused by the adjournments was either absolutely required, or, in proper caution, prudent, in order to its validity. Accidentally, — and the evidence does not disclose whether by the carelessness of the officer or of the printer, — the newspaper advertisements of the sale, in both instances, embodied a mistake. In the first, the day of the week for the sale, appropriate to the day of the month named, was mistaken; and in the last, the levy was stated to have been made in January, when it was actually made in February. For the purpose of correcting such mistakes, it was, in our judgment, quite proper for the officer, that the sale might be correctly advertised and all question of its validity upon this ground avoided, to adjourn the sale, as he did, for the periods necessary for this purpose; and the defendant, at least, whose time to redeem was thereby enlarged, is the last person who has cause to complain of the delay.

Prior to the Revised Statutes of 1857, when the 12th section of chapter 195 was incorporated into our statute law with regard to the service of executions, the usual period of adjournment was from a week to three or four weeks, according to circumstances; but, without the consent of parties, not in general longer; since the command in the execution exacted of the officer reasonable diligence in making the money upon it This section did not confer, but only recognized the well-known incidental power of the sheriff, for good cause to adjourn an execution sale; and its whole force is, in our judgment, expended, by requiring of him to give at least one week's notice thereof in manner provided by law for notice of the original sale. It can have no application to the execution sale in question, which took place in 1855, long before its enactment. We deem this sale good under the law as it then stood, and there is no need of invoking aid from this recent addition to our statutes.

Let judgment be entered for the plaintiff, and execution for possession of the premises demanded issue in accordance therewith.