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Executionduty to instruct.

(103 Kan. 618, 176 Pac. 103.)

proceed, the bank, through its attorney, refused to give any instruction, and told the plaintiff to get out of the difficulty as best he could. The bank should have then given instructions. When it refused, it was bound by what the plaintiff afterward did, so long as he acted in good faith, and it and its sureties must bear the consequences. If the bank did not want to be bound by the acts of the plaintiff, it should have told him what it wanted done.

3. The defendants argue that the plaintiff could not sell the property after the return day, and should have returned the execution on that day. They also argue that the judge at chambers had no power to extend the time for returning the execution. These arguments compel a determination of the power of the sheriff to sell, after the return day of the execution, the property levied on previous to that day.

Section 448 of the Code of Civil Procedure (Gen. Stat. 1915, § 7352) provides that a sheriff may, for his own protection, take security from the execution debtor for the return to the sheriff of personal property that remains in his hands unsold for want of bidders, for want of time to advertise and sell, or for any other reasonable cause. Section 450 of the Code (Gen. Stat. 1915, § 7354) provides that, when a writ shall is

sue directing the sale of property previously taken in execution, the clerk shall add a command directing the officers to levy upon lands and tenements, under certain conditions. Section 457 (§ 7361) provides for

the issue of other executions when

real property has been levied on and not sold. Under these statutes this court has said: "A sheriff cannot legally sell real estate on execution after the return day of the execution, and more than sixty days after its date and after it was issued." Shultz v. Smith, 17 Kan. 306.

This rule has been recognized in. Ritchie v. Higginbotham, 26 Kan.

645; Rain v. Young, 61 Kan. 428, 78 Am. St. Rep. 325, 59 Pac. 1068; First Nat. Bank v. Farmers' Nat. Bank, 61 Kan. 620, 60 Pac. 324; Norton v. Reardon, 67 Kan. 302, 100 Am. St. Rep. 459, 72 Pac. 861.

These decisions also recognize a writ directing the sale of property previously levied on, and that writ and its effect are discussed at length in Ritchie v. Higginbotham. The court there said: "The object of this writ, so far as it regards personal property, is to force the sheriff to sell when he has returned a levy unsold for want of buyers, and to bring him into contempt for not selling it."

If the sheriff can be forced to sell under such a writ, he certainly has the power to sell without it. In 10 R. C. L. 1295, this language is used: "As to the right to sell after the return day, there is some conflict. On the one hand, it is held that such a sale is void, and that the sheriff and the attorney who directed the sale are liable as trespassers. On the other hand, many courts have recognized the authority of the sheriff to sell the property after the return. day, particularly when the levy is made before the return day. Other courts allow a sale of personalty, but not of realty, after the return day. This distinction is based on the theory that a levy on land, unlike a levy on personalty, vests no right or title in the sheriff, so that he acts under a naked power."

be that the sheriff has power to sell The weight of authority seems to personal property after the return day of his writ,

Same-sale

where that property after return has been levied on

day.

before that return day. An exhaustive note on the subject is found in 76 Am. Dec. 83-89. See also note in 28 Am. St. Rep. 120; 1 Freeman, Executions, 3d ed. § 106; 16 Standard Proc. 179; 17 Cyc. 1242; Dennis v. Chapman, 19 Ala. 29, 54 Am. Dec. 186; Cox v. Currier, 62 Iowa, 551, 17 N. W. 767; Savings Inst. v. Chinn, 7 Bush, 539; Sheldon

v. New Orleans Canal & Bkg. Co. 11 Rob. (La.) 181; Labiche v. Lewis, 12 Rob. (La.) 8; Barnard v. Stevens, 2 Aik. (Vt.) 429, 16 Am. Dec. 733.

Under these and other authorities that might be cited, it must be held that the sheriff had the power, after the return day of the execution, to sell the property levied on.

4. There remain the questions of attorney's fees in resisting the action of Marshall against the plaintiff, of attorney's fees in looking after the rights of the plaintiff to the property that was involved in the bankruptcy proceeding, of the mileage of the plaintiff, of the fee for publishing the last sale notice, and of the $50 paid for feed prior to July 3.

On the question of attorney's fees, in 14 R. C. L. 59, it is said: "When actions are brought to recover indemnity, either where the right to indemnity is implied by law or arises under a contract, reasonable counsel fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses."

22 Cyc. 89 and 35 Cyc. 1771 make similar statements. Each of those statements is supported by numerous authorities. These statements are unqualified, and, so far as the language given in each of them is concerned, the liability of the indemnitor does not depend upon notice having been given to him by the indemnitee; but in a number of the cases cited the indemnitor had notice, though in a number of the cases there is nothing to indicate that the indemnitor had any notice. It therefore may be argued that, because the defendants were not notified by the plaintiff concerning the action commenced by Marshall, the defendants are not liable for attorney's fees. The argument is not good. The plaintiff had the right to defend in the action against him. That right could not be taken from him by the defendants. They could

join or assist in the defense, but they could not exclude the sheriff from participating therein. In the following cases the indemnitors participated in the action with the indemnitees, yet the indemnitors were held liable for attorney's fees: Stewart v. Lapsley, 7 La. Ann. 641; Davis v. Smith, 79 Me. 351, 10 Atl. 55; Chesapeake & O. Canal Co. v. Allegany County, 57 Md. 201, 40 Am. Rep. 430; Clarke v. Moies, 11 Gray, 133.

While the solution of the problem presented is not without difficulty, yet the weight of authority, the better reasoning, and the conclusion of the court is that an indemnitee can re-ney's fees. cover his reasonable

Same-attor

and necessary attorney's fees. The conclusion reached is supported to some extent by First Nat. Bank v. Williams, 62 Kan. 431, 63 Pac. 744; Bourke v. Spaight, 80 Kan. 387, 102 Pac. 253; Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285.

It may have been necessary for the plaintiff to employ an attorney in the bankruptcy proceeding. If it was necessary, he can recover the reasonable attorney's fee paid or promised; but, if it was not necessary, he cannot recover.

The fee for the public notice should be recovered by the plaintiff, as well as the mileage for the distances necessarily traveled by him in performing his duty under the execution.

The $50 paid for feed furnished prior to July 3, 1911, should be recovered, if it is found that the amount was so paid.

5. On their cross appeal the defendants contend that no judgment whatever should have been rendered against them. What has been said concerning the ques- Appeal-qnestion presented by tions disposed the plaintiff disposes of this contention of the defendants.

of.

The judgment is reversed, and a new trial is granted.

ANNOTATION.

Judicial sale made after return day of writ, under a levy made before return

I. Generally, 189.

II. Personal property, 189.

III. Real property:

a. Majority rule, 190.

b. Minority rule, 193.

I. Generally.

day.

The question as to grounds of collateral attack on judicial and execution sales is treated in note to Keystone Collieries v. Mudge, 1 A.L.R. 1428.

As to effect upon sale of failure to return the writ until after return day, see note to Moorman v. Campbell County, ante, 177.

It is generally held, in harmony with the reported case (IRELAND V. LINN COUNTY BANK, ante, 184), that, in the absence of a statute to the contrary, an officer, by reason of the title and possession acquired by a previous levy, may sell personal property after the return day of a writ of execution without the issuance of new process; and in some jurisdictions the same rule is adhered to in the case of real property. In other jurisdictions, however, it is held that in the case of real property an officer acquires by a levy neither title nor right of possession, as in the case of personal property, and that realty may not be sold after the return day of a writ of execution without new process, such as a venditioni exponas.

It may be observed from the cases in this note, generally, that where an officer has authority to sell after the return day of a fieri facias, but neglects to do so, a venditioni exponas may be procured to compel him to act; in such case the writ confers upon the officer no authority not previously possessed by him. Where, however, the officer's authority to sell ceases on the return day, and new process is necessary to make a sale thereafter, a venditioni exponas serves the purpose of an execution, and authorizes him to sell.

II. Personal property.

The following cases support the

rule that personal property may be sold after the return day without new process, where it has been levied upon before that day: Evans v. Governor (1851) 18 Ala. 659, 54 Am. Dec. 172; Dennis v. Chapman (1851) 19 Ala. 29, 54 Am. Dec. 186; Logsdon v. Spivey (1870) 54 Ill. 104; Willoughby v. Dewey (1872) 63 Ill. 246; Wright v. Howell (1872) 35 Iowa, 288; Cox v. Currier (1883) 62 Iowa, 551, 17 N. W. 767; Rogers v. Darnaby (1843) 4 B. Mon. (Ky.) 241; Rudd v. Johnson (1824) 5 Litt. (Ky.) 19; Colyer v. Higgins (1863) 1 Duv. (Ky.) 7, 85 Am. Dec. 601; Aubert v. Buhler '(1825) 3 Mart. N. S. (La.) 489; Rothschild v. Ramsay (1831) 2 La. 277; Gaither v. Martin (1852) 3 Md. 154; Sanford v. Durfee (1837) 19 Pick. (Mass.) 485; Blair v. Compton (1876) 33 Mich. 433; Pettingill v. Moss (1859) 3 Minn. 222, Gil. 151, 74 Am. Dec. 747; Barrett v. McKenzie (1877) 24 Minn. 20; Hombs v. Corbin (1886) 20 Mo. App. 497; Lanier v. Stone (1821) 8 N. C. (1 Hawks) 329; Spang v. Com. (1849) 12 Pa. 360; Evans v. Barnes (1852) 2 Swan (Tenn.) 293; Barnard v. Stevens (1828) 2 Aik. (Vt.) 429, 16 Am. Dec. 733.

The court in Logsdon v. Spivey (1870) 54 III. 104, observed that when a sheriff has levied an execution on personal property, and for any reason fails to sell during the lifetime of the writ, the plaintiff in execution may sue out a venditioni exponas, to compel him to sell the property; but only compels him to do what the law required him to do without a writ.

The importance of the distinction between a case where the writ was levied after the return day, and a case where it was levied before the return day but the sale thereunder was made after the return day, is illustrated by Rudd v. Johnson (1824) 5 Litt. (Ky.) 19, supra, where the court, while holding that a sheriff cannot legally receive money on an execution after the return day, unless he has levied on the

property before, observed incidentally that where the sheriff, before the return day, takes property, he may no doubt sell it afterwards, upon the ground that the authority to take and sell property is entire, and he who begins its execution may finish it.

Where property levied on was sold after the return day of the execution, by consent of the defendant, without a venditioni exponas, the legality of the sale was not questioned in Pickard v. Peters (1842) 3 Ala. 493; the court holding that, there being two executions against the same defendant in favor of different plaintiffs, both of which were levied on a slave, the money realized from a sale after the return day, by agreement between the defendant in the execution and the officer, without a bond of indemnity, neither levy having been discharged, should have been applied to the senior instead of the junior execution.

It is held in Sheldon v. New Orleans Canal & Bkg. Co. (1845) 11 Rob. (La.) 181, that the mere seizure under a fi. fa. of a judgment in favor of a debtor does not devest the property of the latter, and transfer it to the seizing creditor. It gives him, at most, a right to proceed and sell the judgment, and to be paid by preference out of the proceeds. A fi. fa. is the warrant of the sheriff, authorizing him to seize property and keep it, and to sell it to satisfy the judgment under which it was issued. When a seizure has been made, the sheriff is not bound to return the writ, though it has subsequently expired. He may retain it and sell the property seized. If he returns the writ he will be without authority to hold or dispose of the property; and any privilege resulting from the seizure will cease to exist.

III. Real property.

a. Majority rule.

In some jurisdictions no distinction is made between real and personal property, and it is held that, where there has been a previous levy, realty as well as personalty may be sold after the return day without the issuance of new process.

United States.-Wheaton v. Sexton (1819) 4 Wheat. 503, 4 L. ed. 626; Remington v. Linthicum (1840) 14 Pet. 84, 10 L. ed. 364; Mason v. Bennett (1892) 52 Fed. 343; United States v. Hogg (1902) 50 C. C. A. 608, 112 Fed. 909, affirming (1901) 111 Fed. 292.

California.-Smith v. Morse (1852) 2 Cal. 525; Welch v. Sullivan (1857) 8 Cal. 165; Southern California Lumber Co. v. Ocean Beach Hotel Co. (1892) 94 Cal. 217, 28 Am. St. Rep. 115, 29 Pac. 627.

Idaho. Ollis v. Kirkpatrick (1891) 3 Idaho, 247, 28 Pac. 435.

Illinois. Phillips v. Dana (1842) 4 Ill. 551; Reddick v. Cloud (1845) 7 Ill. 670; Bryant v. Dana (1846) 8 Ill. 343; Bellingall v. Duncan (1846) 8 Ill. 477.

Indiana.-Tillotson v. Doe (1841) 5 Blackf. 590; Ewing v. Hatfield (1861) 17 Ind. 513; Lowry v. Reed (1883) 89 Ind. 442; Rose v. Ingram (1884) 98 Ind. 276.

Iowa.-Stein v. Chambless (1865) 18 Iowa, 474, 87 Am. Dec. 411; Childs v. McChesney (1866) 20 Iowa, 431, 89 Am. Dec. 545; Butterfield v. Walsh (1866) 21 Iowa, 97, 89 Am. Dec. 557; Thorington v. Allen (1866) 21 Iowa, 291; Moomey v. Maas (1867) 22 Iowa, 380, 92 Am. Dec. 395.

Kentucky.-Allen v. Trimble (1815) 4 Bibb, 24, 7 Am. Dec. 726; Cox v. Joiner (1815) 4 Bibb, 94; Savings Inst. v. Chinn (1870) 7 Bush, 539; Neilson v. Churchill (1837) 5 Dana, 333.

Louisiana.-Rowly v. Kemp (1847) 2 La. Ann. 360; Dorsey v. Carrollton Bank (1850) 5 La. Ann. 237; Fink v. Lallande (1840) 16 La. 547; Black V. Catlett (1842) 1 Rob. 540; Labiche v. Lewis (1845) 12 Rob. 8.

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New York.-Wood v. Colvin (1843) 5 Hill, 228; Jackson ex dem. Cooper v. Browner (1831) 7 Wend. 388.

Pennsylvania.-Blythe v. Richards (1823) 10 Serg. & R. 261, 13 Am. Dec. 672; Toonur v. Purkey (1817) 1 Mill, Const. 323, 12 Am. Dec. 634. South Carolina.-Gassaway v. Hall (1837) 3 Hill, L. 289. Washington. Hensen (1917) 95 Wash. 628, L.R.A.1918F, 602, 164 Pac. 512.

V.

Peter

England.-Jeanes v. Wilkins (1748) 1 Ves. Sr. 195, 27 Eng. Reprint, 978.

It should be observed that the fact that a writ of venditioni exponas may in fact have been issued does not militate against the authority of a case in support of the rule above cited, where it appears that such writ was not the source of the officer's authority, but a mere means of compelling him to exercise his authority. In Southern California Lumber Co. v. Ocean Beach Hotel Co. (1892) 94 Cal. 217, 28 Am. St. Rep. 115, 29 Pac. 627, supra, the court said that a writ of venditioni exponas is sometimes issued, but its issuance is not necessary to justify a sale, as the writ itself is only a direction to perform a duty which already exists, and the sheriff acquires no additional authority from its issuance; and quoted from Freeman on Executions, 2d ed. § 58, as follows: "By a levy, a lien is created whose duration is not limited to the return day of the writ, and from this it must necessarily follow that the officer has authority, notwithstanding the passing of such return day, to make his levy productive by a sale of the realty levied upon; and this authority is not dependent on the issuing of a venditioni exponas, for this writ does nothing more than to compel performance of a pre-existing duty."

In Bellingall v. Duncan (1846) 8 Ill. 477, supra, the court observed that a sheriff did not derive his authority from the writ of venditioni exponas.

In the early case of Wheaton v. Sexton (1819) 4 Wheat. (U. S.) 503, 4 L. ed. 626, supra, the court expressed its surprise that any doubt could be entertained that a sale of real property might be made after the return, if the levy was made before the day.

In United States v. Hogg (1902) 50 C. C. A. 608, 112 Fed. 909, affirming (1901) 111 Fed. 292, supra, Lurton, Ch. J., writing the opinion, it was held that a statute of Kentucky, providing that an officer may at any time after return day, while the original execution is in his hands, sell any property taken in virtue thereof, "providing the levy was made before the return day," was merely declaratory of the common law, and did not interfere with the rule at common law that an execution was leviable as well on the return day as upon any prior day of its life, nor prevent a sale after the return day, under a levy made on the return day.

In Remington v. Linthicum (1840) 14 Pet. (U.S.) 84, 10 L. ed. 364, supra, the court said that as a special return on a fi. fa. is one of the modes of proving a sale and securing the title of the purchaser, the marshal must be authorized to make an indorsement, after a regular return term, in cases when the sale was made afterwards.

In Moreland v. Bowling (1846) 3 Gill (Md.) 500, supra, the court said the sheriff may retain a fi. fa. in his hands after a levy and an ineffectual effort to sell, not only until the return day has passed, but until several terms have passed, and may then sell; it is at the option of the plaintiff to rule the return of the fi. fa. and issue a venditioni exponas, or allow the sheriff to continue to act under the fi. fa.

In Hensen v. Peter (1917) 95 Wash. 628, L.R.A.1918F, 682, 164 Pac. 512, supra, the court said: "It is well settled that, in the absence of a statute to the contrary, an officer who has entered upon the service of an execution by levying the same upon the property of the debtor before the return day may, after the return day and after the actual return, continue to hold the property and prosecute such further proceedings as may be necessary to convert the property, whether real or personal, into money, for the purpose of satisfying the judgment. This is especially so where the sheriff has been interrupted by an injunction, issued at the instance of the judgment debtor."

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