concurring:
The basis of thissuitis laid upon theground that the plaintiff, and defendant Cole, before the commencement of then-said actions entered into a mutual agreement whereby they were to commence simultaneous suits and make their liens mutual and share pro rata in proportion to their respective claims by reason of the issuing of their said attachments, i. e., that one should not be superior or stand preferred before the other. The court on the trial did not find the proof sufficient to support these allegations in the bill. No exceptions were taken, and counsel admit that they failed to show the several frauds in this regard.
The second and most potent ground which the counsel for plaintiff raise for setting aside the judgments of defendant Cole is, that said judgments were rendered for gold coin; that executions issued for gold coin only; that bids were not received in any other kind of money, and such proceedings were a fraud upon plaintiff’s rights and equity of redemption.
Since we have had this case under consideration, the supreme court of the United States have decided the question in favor of gold-coin judgments, and we are bound by that decision.
The third ground of complaint is, that Cole’s judgments were obtained upon domestic bills of exchange drawn by the Lincoln gold and silver mining company, in this territory, upon their house in the state of Bhode Island, and that twenty-five per cent, damages are taxed up in said judgments.
We do not think this point is well taken. The rule is well laid down in 1 Parsons on Notes and Bills, p. 632. He says: “It is not absolutely necessary that the drawer should be a different person from the drawee; for it is very common for a man to draw upon himself; and it has long *293been held that such an instrument is a good bill of exchange. The same principle applies when partners carry on business at two different places, and one establishment draws a bill on the other. So, when a duly authorized agent or officer of an incorporated company draws in behalf of the company upon the treasurer, cashier, or other officer of the company who has the control of or is charged with the duty of disbursing the company’s funds. This is in substance, it should seem, a draft of the company upon itself, and may be treated either as a bill of exchange or a promissory note; and it is a general rule that when it is doubtful whether the instrument is intended as a bill of exchange or a promissory note, and it possesses the requisites of each, it may be treated as either, at the option of the holder.”
The fourth ground of complaint by plaintiff is, that the defendant Cole, not only taxed up the twenty-five per cent, damages, but he also charged the interest on said bills of exchange, and taxed the same in his judgments. This is undoubtedly true, and would on motion, at the proper time, have been corrected by the court, and modified or reduced the judgment about eighty dollars, or if the court had refused to modify the judgment in this particular, such refusal would be good ground for assignment of error on appeal. It was a mere irregularity, and can not be attacked for the first time by a bill in equity, either by the defendant in the case or by a judgment creditor. The bill must show some fraud in the concoction of the judgment. There is no fraud contended for on this point, and it is doubtful whether the district court would have the right to correct its own judgment in such cases after the adjournment of the term. It is not probable that this error was discovered by anybody until Hazard had made his ineffectual attempt to redeem the Lincoln mill property; for he had contracted to Cole’s judgments, and would not have considered any fatal error in the entry, or any conviction of fraud in a judgment that he desired to purchase.
The next or fifth ground of complaint in the order in which I am considering this question is to the fifth finding *294of the court. The finding is as follows: “That said Cole, on sale of said personal property, received possession of tbe personal property so bid in by liim, hired a keeper to hold and take care of the same, and kept the possession of the same until he sold it to defendant Wilson in December, 1867; and the sheriff on sale of the mill premises on the sixth of April, 1867, filed in the recorder’s office of said county a certificate of such sale, and delivered to said Cole a duplicate of the same.”
The delivery or possession of the personal property purchased by Cole at the sales, or any fraud in that particular, are not complained of in the bill filed by the plaintiff. But inasmuch as the court found upon this question, upon proof submitted at the trial, and now'made a part of the statement, and in view of the able arguments of counsel and the importance the plaintiff attaches to this question, we have carefully considered the evidence submitted and do not find sufficient ground to overrule the opinion of the court as to this finding, or set aside the judgments on this ground. If there can be anything said in addition to what the chief justice has said in support of the possession claimed by Cole, it may be put upon the ground that Hazard was cognizant of, and consented to, Cole’s possession, and the manner that he took and held the property. Webb swears that he bought some articles of personal property at the sales of the fourteenth of March, 1867, but at request of Cole and Hazard he did not take them away, but left them there under an arrangement with Hazard and Cole, so that the property might be kept together. Three days prior to the fourteenth of March, Cole and Hazard entered into a mutual agreement in writing for Cole to proceed and sell the property on his executions. The substance of the agreement was that the property should not be sacrificed; that Cole should be the purchaser if necessary, and turn it over to Hazard, by Hazard’s paying Cole the amount of his judgments. The meaning of the contract was that Hazard, on paying Cole the amount due him with costs, he, Hazard, should be subrogated in law and equity to all the rights *295of said Cole in every respect whatever in reference to said judgments and the property purchased at said sales.
It is true Cole was to sell the property according to law. Hazard, then, was interested in the title that Cole might obtain on his sales upon execution. Now, if Cole had committed a fraud or such a mistake in conducting the sales, then Hazard would have good ground to complain. He might seek his remedy in an action at law upon his contract, or if the property was still in the hands of Cole, he might ask to have the sales set aside. But, suppose that Hazard had been a party to the fraud. It could not be contended that he would be entitled to any relief. Hazard, although a witness on the stand, in his testimony now before us does not deny Webb’s testimony that he had agreed with Cole that the personal property should be kept together on the premises, nor does he testify but what Cole, either by himself or his agent, had continued control of the property.
I do not take it that either party committed any fraud, and of course Hazard could not have participated in any. But let us see what relation Hazard stood in, and how he treated these sales. Hazard was at the sales and saw how they were conducted. He was several times on the premises, and swears that he had meetings there with the defendant, Wilson, in regard to Wilson’s purchasing the property before he did make a purchase. He said, or must have known, that Cole had hauled the one or two hundred cords of wood from Long Gulch, and stacked it with the property or wood on the premises. He knew the character and dominion that Cole exercised over the property then, as well as he does now. He had, or at least he should have had, as much anxiety to make his money on his judgments as he has at any time since. If Cole did not have full and complete possession of the property and a valid title, why did Hazard stand by with his executions in his hand and refuse or neglect to levy ? The fact is, Hazard treated these sales as valid and sufficient. Can it be supposed that if Hazard had performed his contract with Cole for the purchase of the property which he was endeavoring and so *296anxious to fulfill, Cole’s dominion over tbe property was such that be could not deliver it over to Hazard, and if be did deliver it over no good and sufficient title would pass ? Hazard did not so consider it, but on tbe contrary be stood by with bis executions in bis band and assented to tbe proceedings that Cole bad bad under bis executions by offering to purchase. For these reasons be ought not to complain of tbe character of possession which be assented to, and which could in no way injure him.
Tbe next and last ground of complaint is tbe two sales of tbe real property made by Cóle on bis executions. It is contended by tbe plaintiff that these sales were a fraud upon bis right of redemption. It appears that tbe first sale was made on tbe sixth of April, 1867. Tbe time for redemption on this sale would run out on tbe sixth of October, 1867. Tbe second sale was on tbe eighth of June, 1867. Tbe time for redemption would run out on tbe eighth of December, 1867. Tbe only return on these executions is made upon tbe last sale or alias execution.
“ Cole says that be relies upon tbe first sale; that tbe last sale was made by bis attorney, McQuade, in bis absence, without bis advice or authority.” “Hazard says that Cole told him tbe last of August or first of September that bis time for redemption would run out about tbe first day of December. I told him I thought I bad sixty days more in addition to redeem in. He seemed surprised, but seemed to be satisfied. I found by conversation with Judge Miller that I did not have tbe sixty days to redeem in. When I came back from San Francisco I went to tbe recorder’s office to see tbe exact time in which to redeem. I found two certificates of sales. McQuade, Cole’s attorney, came into tbe office, and I asked him if be bad collected any more money for me. He first refused to answer; then be said be bad not. I then said, here are two certificates of sales. He said, that makes no difference; you will find tbe return was made under tbe alias execution and your rights have been preserved. We claim under tbe last sale. Next morning I met him there again, and be said, we claim under both sales; if tbe first is not good, tbe last is. In consequence *297of tbe last sale I never paid Cole according to tbe written agreement made before tbe first sale.”
Cole told me be did not expect I would. On tbe twenty-seventb day of November I tendered Cole nine thousand five hundred and eigbty-two dollars legal-tender notes in redemption of tbe Lincoln mill property. He said in reply to my tender that bis judgment was for gold coin, and that be would not take greenbacks; made no other objection to tbe tender. Martin Heman and E. H. Clinton, witnesses introduced by Hazard, testified in regard to tbe tender in substance tbe same as Hazard. Heman testifies that “ Cole said to him that be Avould not take greenbacks, but if Hazard bad tendered him coin, or greenbacks at coin rates, be would have taken it.”
Now, if there was any fraud in these sales, or in consequence of there being two sales, and that fraud operated upon tbe rights of Hazard, and defendant Wilson was cognizant of or a party to tbe fraud, bis purchase can not be protected, for tbe sales ought to be set aside. In tbe first place, can two sales be made of tbe same property for the same debt, without committing a fraud ? It sometimes •happens, though we trust not often, that tbe preliminary proceedings of a sale, such as giving tbe requisite time or tbe manner of writipg notices or posting tbe same, or tbe place and manner of conducting tbe sales, are wholly insufficient and not in accordance with tbe law, and tbe sale for that reason is invalid or void. Or suppose tbe legality of tbe sale may be doubtful, all of which is done without any fraud or intention of fraud, can tbe party proceed to make a second sale without applying to tbe court to set aside the first sale? Or suppose tbe second sale is made by mistake or without authority, does it vitiate tbe first sale so as to call for tbe aid of tbe court? If one of tbe sales were invalid and tbe other good, then tbe court could not aid tbe case, for tbe invalid sale would be no sale at all. But suppose that both sales were good so far as tbe proceedings can be determined; then tbe first sale would certainly be good, and tbe party might rely upon it even after tbe second sale bad been made, did it not actually mislead or work an injury *298to the judgment debtor or judgment creditors. It might be the better practice to apply to the court and there first determine the validity of the sales, and set aside the doubtful one, instead of taking the responsibility without the aid of the court. But such determination of the court would add nothing to the validity of a valid sale or impart any better notice to the redemptioner than any legal sale gives without such determination. Hence, we must conclude that two sales might be made, and if either were good, such sale should not be set aside merely because there were two sales.
The ground raised by plaintiff’s counsel, that there being no return made by the sheriff on the first execution, and a return having been made on the second or alias execution, invalidates the sale under the first execution, is not well taken. My associate has shown in his opinion that a return may not be made at all, and still the sale may be good. The authorities are decisive on this point, and it must be so held when there is no fraud in the transaction.
We will now consider how Hazard treated these sales. It is not contended that there was fraud practiced in making the sales, or that there was anything wrong, except in the fact that there were two sales. Hazard says he should have performed his agreement with Cole if he had not discovered that two sales had been made. This can not be, for by his own testimony he swears that the first time he discovered that two sales had been made, “ was when he was in the recorder’s office about the last of August or first of September, 1867,” when the terms of his agreement with Cole show that he should have performed certain conditions therein by the first of July, 1867, two months prior to the time that he discovered the two sales.
Admitting the facts as Hazard states them, by his own observance of the record, that the time for redemption on the first sale ran out on the sixth day of October, 1867, and ■ the time for redemption on the second sale would be on the eighth of December, 1867, could he be deceived in regard to his rights? He complains that Cole told him his time for redemption would expire about the first of December. But he admits that he saw the record of the two sales, and *299that Cole told bim about tbe same time that be claimed under tbe first sale. From tbe time that Hazard says be first discovered that tbe two sales bad been made until tbe time for redemption under tbe first sale, nearly forty days bad intervened. But Hazard does not pretend be made any effort or offered to redeem during this time. On tbe twenty-seventli of November, 1867, about tbe time of redemption under tbe last sale, be offered to redeem by tendering greenbacks, which Cole refused because they were greenbacks, but offered to allow bim to redeem if be would pay coin, as bis judgments called for. Three months elapsed from tbe time he discovered tbe two sales, and Cole told be claimed under tbe first sale up to tbe time of bis offer to redeem, and during this time Hazard and Cole and Hazard and Wilson were frequently together, and Hazard continually trying to buy or sell out to one or tbe other of these parties, and did not complain of any deception or fraud in tbe sales. But when bis efforts to purchase had failed, be offers to redeem if Cole would take greenbacks.
Now, did Hazard at that time suppose be would obtain a good title to tbe property by redeeming from Cole?. Did be suppose tbe sales were valid and bis title would be good against tbe Lincoln mill company and against other judgment creditors? Most certainly be did. No better evidence could be given of this fact than bis offer to pay over nine thousand dollars for tbe property and accept such a title as Cole bad acquired under bis execution sales.
It is true Cole sold tbe property to Wilson two or three days before tbe time for redemption would run out on tbe last sale. But of- that there can be no complaint, even if Cole bad claimed under tbe last sale, or if Hazard bad a right to redeem therefrom. He must make a good and sufficient offer to redeem, one which Wilson (or Cole for Wilson) would be bound to accept, and unless be did make such offer and tbe offer was refused, be was not defrauded or prejudiced by the sale.
From tbe whole history of this case we are led to believe that there was no intention to deceive, and that Hazard was not deceived in tbe manner or mode of making tbe sales, *300but on tbe contrary be knew all tbe facts, and all tbe time relied upon a hope to buy Cole or sell bis interest to Cole or Wilson, or upon his right to redeem in greenbacks.
However great may be tbe burden to tbe plaintiff, or however strong bis appeal for equitable interposition, be has not laid or relied upon any substantial ground for relief, and bis accumulation of seeming grievances is swept away tbe moment be fails to show that actual fraud has been committed.