Moore v. Burdge

The opinion of the court was delivered by

Wells, J. :

The plaintiff in error contends that the action of the defendant in error under the order of sale constituted a failure to execute the same, and that therefore the amercement should have been decreed, and refers us to the following authorities in support of such contention : Armstrong v. Grant and Prest, 7 Kan. 285; National Bank v. Franklin, 20 id. 264; Walker v. Braden, Sheriff, 34 id. 660 (9 Pac. Rep. 613); Gray v. Case, 51 Mo. 463; 2 Freeman on Executions, §§ 300, 301.

The case of Bank v. Franklin, supra, was am action for damages for delivering property in the hands of the officer to some third person so that the same became lost, and there were but three questions discussed in it: (1) Is the appraisement conclusive evidence of the value of the property? (2) Was there error in refusing to admit the order of sale in evidence ? (3) Was a writ directed to the deputy sheriff void, tor simply irregular ?

Freeman on Executions, supra, contains nothing conclusive in support of the position of the plaintiff in error. The text (sec. 301) says, “ The officer is not authorized to sell on credit.” This is followed by a note saying, “Yet it would hardly be expected that the bidders would attend with the necessary coin in' their hands. Some indulgence may be given. (Ruckle v. Barbour, 48 Ind. 274.) ” It is said, in substance, that the levy and sale are for the benefit of the plaintiff and his wishes should be respected. “Hence the plaintiff should be allowed to accept payment in any manner satisfactory to him. ... If, however, the officer surrenders the property to the purchaser, or otherwise treats the sale as consummated, the former becomes responsible to the plaintiff for the amount of the bid.” These are parts of the section referred to, and announce some of the general principles governing such sales.

Walker v. Braden, supra, was an action brought by the sheriff to recover from the bidder the amount of' the accepted bid for property sold and delivered to the defendant. On page 666, Johnston, J., speaking for the court, says :

“This return shows not only an unsatisfied execution, but it discloses an actual sale to the plaintiff in error, and also.that the sheriff, instead of rescinding the contract and reselling the property, elected to make-himself liable by returning a sale, trusting to a recovery against the purchaser. The testimony of the-sheriff is, that immediately after the sale the possession of the property was delivered to the purchaser, and by the sale and delivery thus made the sheriff undoubtedly made himself liable for the amount of the bid.”

This is just what .the sheriff in the case at bar did not do. He rescinded the contract, kept the possession, and resold the property, and thus elected not to make himself liable.

Armstrong v. Grant and Prest, supra, was'an action brought to amerce a sheriff for not serving an execution delivered to him some thirty days before his term of office expired, but not returnable for several days after the expiration of said term, and the supreme court held that this could not be done without a showing of negligence. “The provision of section 472, chapter 80, of the General Statutes of 1889, for amercement of a sheriff, ... is highly penal in its character, and he who would avail himself of the remedy by amercement must bring himself strictly both within the letter and spirit of the law.” (Reece v. Rice, 1 Kan. App. 311, 41 Pac. Rep. 218.) ' From the evidence in this case, it is doubtful if the sheriff could have sustained a suit for the price bid at the first sale, had he elected to assume the responsibility; but, waiving this, the action of the defendant in error does not constitute a refusal or failure to execute the order of sale, and the court properly overruled the motion to amerce him therefor.

The judgment of the district court is affirmed.