I agree with most, but not all, that is said in the foregoing opinion. I do not agree that the order appealed from should be affirmed. I think it should be reversed, because, in my opinion, the notice of sale was defective and misleading for failure sufficiently to describe the property proposed to be sold. My associates do not discuss this question further than to say that the specifications of error do not present the question. To this I cannot agree.
In defendant's motion to set aside the sale it is alleged "that the noticing for sale and the offering for sale and the actual sale of said oil and gas rights jointly prevented many persons who might otherwise have been prospective bidders at said sheriff's sale from bidding on the oil rights belonging to the defendant." He has specified error in denying his motion to set aside the sale. This, I think, is sufficient specification of error to present the question. My reasons for thinking that the order should be reversed on the ground stated above are these:
It is shown that defendant did not own any gas rights in, to or under any of the described land. He owned only a portion of the oil rights. The notice of sale did not state that only the interest of Oakley Curry in the oil and gas would be sold. It did not specify what interest would be sold. It simply advised the public that "all oil and gas rights" in the property would be sold. There is evidence that the gas rights are worth in excess of $250,000, that the oil rights are worth in excess of $9,000, and that the wells drilled for producing gas cost approximately $100,000.
The obvious effect of the notice wherein it was stated that "all oil and gas rights" would be sold was to keep from the *Page 224 sale bidders with limited means. The public was not advised by the notice of sale that it was merely the interest of Curry in the oil or gas rights, either or both, that would be sold. They were not advised by the notice how much of oil rights Curry had. The face of the notice, coupled with the proof of the value of the oil and gas rights, carried the implication that the sale would be of no interest to those of limited means.
Our statute commands that the notice shall particularly describe the property. (Sec. 9432, Rev. Codes 1921.) The rule announced by the authorities is that, where the description of the property in the notice is erroneous or insufficient, the sale will be set aside on motion. (23 C.J. 639, note 9; Hoeflich v.Hoeflich, 12 Pa. Co. Ct. R. 370; Montgomery v. Connor, 30 Pa. Co. Ct. R. 447; Stoffel v. Reiners, 3 Mo. App. 33.) And it is not sufficient that the actual purchaser knew what he was buying, or that the debtor knew what property was being sold. Sufficient description is necessary so that every person invited to attend the sale may know what is proposed to be sold. (Childs v. Ballou, 5 R.I. 537.)
In Gales v. Christy, 4 La. Ann. 293, it was held that "the judicial sale to the plaintiff of the rights, interests, claims and demands of the heirs of Thomas Beale, Sr., in right of their inheritance of their deceased father, on their mother and tutrix, was void, by reason of the vagueness and insufficiency of the description of the thing sold. The nature of the rights, interests, claims and demands should have been stated in such a manner as to give bidders a clue to their value." To the same effect are Dearmond v. Courtney, 12 La. Ann. 251, andMulling v. Jones, 153 La. 1091, 97 So. 202.
One witness testified that he was deterred from attending the sale and becoming a prospective purchaser by reason of the fact that the notice specified a sale of both oil and gas rights, which he understood meant a sale of the two rights jointly. Many persons may have been interested in becoming bidders for a portion of the oil rights on some one or more of the various tracts of land, and yet not have been at all interested in all the oil and gas rights on the same tract. I think *Page 225 the sale should have been set aside because of the misleading notice of sale in erroneously describing the property to be sold. I might well stop here were it not for the rule stated inBurton v. Kipp, 30 Mont. 275, 76 P. 563.
Section 9433, Revised Codes 1921, in part provides: "An officer selling without the notice prescribed by the last section forfeits five hundred dollars to the aggrieved party, in addition to his actual damages." This court in Burton v. Kipp, supra, held that the remedy provided for in section 9433 is exclusive. I think that case, so far as it holds that the remedy there provided is exclusive, constitutes judicial legislation, is unsound, and should be expressly overruled. It should be noted that the statute does not say that the remedy provided in section 9433 shall be exclusive. The courts of California and other states reach the conclusion that it is exclusive because they say it is in furtherance of the policy of encouraging bidders at execution sales. The California courts take the view that a purchaser is not a party aggrieved, within the meaning of a statute identical with our section 9433. (Kelley v. Desmond,63 Cal. 517. I see no reason why a purchaser may not be a party aggrieved under that section. If so, the policy of encouraging bidders at execution sales is as well preserved by holding the sale voidable as by holding it valid. If the sale is set aside and the purchaser has sustained damages, he should have the right under section 9433 to proceed against the officer selling without adequate notice. The section was designed, not so much for the purpose of encouraging execution purchasers, but for the purpose of compelling sheriffs to do their duty with respect to giving proper notice. It shows that the legislature was solicitous, and not indifferent, about the matter of notice.
It was never intended that the sheriff could make a valid sale on an inadequate or defective notice, or without any notice at all, leaving the aggrieved party with no other remedy than that of an action against the sheriff. I think the giving of proper notice is essential to vest the officer with authority to make a valid sale, particularly where, as here, the sale is challenged *Page 226 by direct attack. This court has intimated that a sale under a defective notice "may have been voidable." (Exchange State Bank v. Occident Elevator Co., 95 Mont. 78, 24 P.2d 126). The California Court of Appeals, in speaking of the rule that the remedy against the sheriff is exclusive, admits that "much well-directed criticism may appear justifiable and many plausible arguments might be advanced against such holding." (Batini v.Ivancich, 105 Cal. App. 391, 287 P. 523.)
I realize, too, that since the Kipp Case has stood for thirty years without legislative change in the statute, there should be reluctance in overruling it. But error should not be perpetuated and justice sacrificed by submitting to precedent, however well established. The learned trial judge, confronted as he was by the decision in the Kipp Case, was, of course, warranted in disregarding all defects in the notice of sale. As stated, I think that case on the point here considered should be overruled and the order appealed from reversed.