Ketterer v. Billings

DONALDSON, Chief Justice. On or about May 1, 1975, respondent Ketterer filed an action to foreclose a materialman’s lien on the residence of appellant Mileck and her husband, Gene Mileck. Judgment for $1,452.42 was subsequently entered in favor of Ketterer. Thereafter, the Milecks’ property was sold to Ketterer at an execution sale conducted by a special constable on November 11, 1976. Neither of the Milecks exercised their right to redeem the property, and therefore, Ketterer obtained title to the property by virtue of a sheriff’s deed. Sometime thereafter it was discovered that the description of the property in the lien, complaint, judgment, and deed was inadequate. Therefore, respondent Ketterer moved for a decree reforming the sheriff’s deed. Subsequently, the court issued its decree reforming the sheriff’s deed on March 13, 1979. However, the decree reforming the deed was effective only against Gene Mileck because of a defective service on Mileck. Gene Mileck died on October, 1979. On September 25, 1980, appellant Nola Mileck filed her Motion To Set Aside The Execution Sale. After a hearing on the matter, the district court denied the motion. This appeal followed. We shall address appellant Mileck’s contentions on appeal in the order presented to us. Initially, appellant Mileck argues that the execution sale should be set aside because it was conducted by a special constable rather than by a sheriff. We disagree. I.C. § 31-3010 authorizes a magistrate “to appoint and deputize any person [in the county] to act as special constable, with full power and authority to perform such duties of constable as the magistrate may specifically order or designate.” Furthermore, I.C. § 31-3002 provides that constables are to “execute, serve and return all process and notices directed or delivered to them by a magistrate ... or by any competent authority.” We hold that a district judge qualifies as a “competent authority.” Consequently, the use of the special constable, under the direction of the district court, to conduct the execution sale was proper and therefore, we refuse to set aside the execution sale on this ground. Secondly, appellant contends that the execution sale should be set aside since it took place on November 11, 1976, a legal holiday. Appellant argues that an execution sale is judicial business which according to I.C. § 1-1607 may not be transacted on a legal holiday. We are unconvinced that an execution sale constitutes “judicial business” as that term is used in I.C. § 1-1607. Rather, we believe an execution sale is a ministerial act. See Young v. Patterson, 9 Cal.App. 469, 99 P. 552 (1908) (tax sale constitutes a ministerial act). We have previously held that the statute prohibits judicial but not ministerial acts on a Sunday or other legal holiday. State v. Gilbert, 8 Idaho 346, 69 P. 62 (1902); Havens v. Stiles, 8 Idaho 250, 67 P. 919 (1902). This comports with the general rule that execution sales conducted on holidays are valid. See Kantack v. Kreuer, 280 Minn. 232, 158 N.W.2d 842 (1968); see generally 73 Am.Jur.2d Sundays & Holidays § 119 (1974); 40 C.J.S. Holidays § 6 (1944); Annot., 58 A.L.R. 1273 (1929). Furthermore, I.C. § 11-304, the section which describes the manner in which an execution sale is to be conducted, simply states that “[a]ll sales of property under execution must be made at auction, to the highest bidder, between the hours of nine (9:00) in the morning and five (5:00) in the afternoon.” I.C. § 11-304 places no other restrictions on the time when an execution sale may be conducted. Appellant has not contended that the execution sale herein violated I.C. § 11-304 in any manner. Therefore, we refuse to set aside the execution sale on the ground that the sale took place on November 11, 1976. Thirdly, appellant Mileck argues that the execution sale should be set aside because the property description in the Notice of Sale was incorrect. It is undisputed that the real property involved herein consisted of the North lk of Lot 7 and the North lh of Lot 8, Block 30 of the corrected plat of the [834] town of Coeur d’Alene. The Milecks’ residence was situated on this piece of property in such a manner that it straddled the line between the north halves of Lots 7 and 8. The description of real property contained in the materialman’s lien, complaint, judgment, Notice of Sale, and sheriff’s deed was inadequate in that it referred to only the north xk of Lot 7. Therefore, appellant Mileck asserts that the execution sale must be set aside due to the incorrect property description. In reply, respondent Ketterer argues that the description was sufficient since it adequately identified the property, and since both of the Milecks were aware that the lien was filed with respect to all of the property and the residence thereon. On July 19, 1978, respondent Ketterer petitioned the district court for reformation of the sheriff’s deed which had been issued. On March 12,1979, the district court granted respondent’s petition and reformed the deed to include both the north xk of Lot 7 and the north xk of Lot 8. However, immediately above his signature, the district judge added the following hand-written sentence to the decree reforming the deed: “This decree is limited in its application to defendant Gene Mileck only as he alone was served with the petition for reformation.” 1 We begin our analysis of this issue by noting that the property description used in the lien, complaint, judgment, and sheriff’s deed was not an incorrect description. The description was an adequate and correct description of the north xk of Lot 7, Block 30. Although this description was apparently not the entire description which was intended by respondent Ketterer, that failure on respondent Ketterer’s part does not make the description given any less correct. Therefore, there is no need to set aside the execution sale on this ground, because there was no incorrect description. However, our analysis does not end here. Since the decree reforming the deed was effective only as to Gene Mileck’s interest in the north xk of Lot 8, appellant Nola Mileck still possesses an undivided one-half interest in the north xh of Lot 8. Consequently, as a result of purchasing the property at the execution sale, respondent Ketterer now possesses all of the interest previously owned by the Milecks in the north xh of Lot 7, and an undivided one-half interest in the north xh of Lot 8. Appellant Mileck and respondent Ketterer are therefore tenants in common, each possessing an undivided one-half interest, as to the north xh of Lot 8. See Young v. Hessler, 72 Cal.App.2d 67, 164 P.2d 65 (1945); cf. First National Bank of Southglenn v. Energy Fuels Corp., 200 Colo. 540, 618 P.2d 1115 (1980) (joint tenancy severed by operation of law by execution sale results in purchaser becoming tenant in common with remaining tenants). Lastly, appellant Mileck contends that the entire execution sale should be set aside because of the large disparity between the value of the property at the time of the sale and the amount paid for the property at the execution sale. Respondent Ketterer purchased his interest in the property at the execution sale for $1,586.94. In addition, the district court found that the actual worth of all of the property (i.e., the north xk of Lot 7 and the north xk of Lot 8) and the home was $20,-500.00. Therefore, appellant asserts that the gross inadequacy of consideration, and the other circumstances previously discussed, provide sufficient grounds to set aside the execution sale. Although the total value of the home and property was found to be $20,-500.00, there is no finding as to the value of the north xk of Lot 7 and an undivided one-half interest in the north xk of Lot 8 which is the property actually purchased by respondent Ketterer at the execution sale. Consequently, it is unclear whether there is a gross inadequacy of consideration here entitling appellant to the relief she seeks. We note, however, that this is an extremely unique case as exemplified by the fact that the house steadies the property line between the north halves of Lots 7 and 8, and by the fact that appellant Mileck possess [835] an undivided one-half interest in the north V2 of Lot 8, and that respondent Ketterer possesses an undivided one-half interest in the north V2 of Lot 8 in addition to his interests in the north xk of Lot 7. Therefore, in order to do equity to all parties involved, we are remanding this case to the district court with instructions to conduct a sale of the north halves of Lots 7 and 8 including the house located thereon. The court is then instructed to distribute 75% of the proceeds to respondent Ketterer, and 25% of the proceeds to appellant Mileck. Judgment affirmed with modifications, and remanded. Parties to bear their own costs on appeal. No attorney fees on appeal. BAKES, BISTLINE and HUNTLEY, JJ„ concur. McFadden, J. pro tem., concurs in the result. Footnotes [1] We express no opinion as to the district court’s opinion that the reformation is applicable only to Gene Mileck because neither of the parties have questioned this on appeal.