Perkins v. Spaulding

By the Court Geeen, J. It seems very clear that the bill of sale was, in effect, a mortgage upon the wheat, to indemnify Perkins against his liabilifyupon the note to Paulding; and there can be no doubt of the sufficiency of the tender if such tender was necessary, and consequently, no doubt of the right of Spaulding to recover in the County Court, unless the sale of the wheat on the execution was void, for irregularity. The execution contains all the substantial requisites specified in the statute. (I?. S., Gh. 93, § 106.) It should unquestionably recite the judgment, so far as clearly to identify it, for the protection of the defendant. This execution recites the names of the parties, plaintiffs and [160] defendant, the amount of damages and of costs, the day of the month when, and the justice before whom the judgment was rendered. The mistake in the name of the township, made by the constable in indorsing his levy upon the execution, did not vitiate the levy. It described the property as being “about twenty-five acres of wheat on the ground on the farm of Veedor Colgrove, in the township of Madison, now occupied by defendant.” The testimony showed that the wheat sold was twenty-five acres on the ground, upon the farm of Veeder Colgrove, in the township of Dover, which the defendant in the execution occupied at the time of the levy, as' well as at the time of the sale, and that it was all the wheat then on the farm. *■ Had the wheat been sold by the o wner of it, by such a description, the sale would not have been held void for uncertainty, the mistake being clearly shown by the light of the surrounding circumstances. The statute requires the constable, after indorsing his levy upon the execution, to give public notice, by advertisement, signed by himself, and put up at three public places in the city or township where the goods and chattels shall he taken, when and where they will he exposed for sale, and that such notice shall describe the goods and chattels, and shall be put up at least five days before the time appointed for the sale. (S. S., Ok 93, § 120, 121.) These are all the requirements of the statute in regard to notice, and it is not claimed that they have not been literally complied with in this case. But it is insisted that the notice ought to have stated that the property advertised was the property of the defendant in the execution, or who the defendant in the execution was, or whose property it was that was advertised to be sold. It would he very proper to specify the name of the defendant in the execution, in the notice of sale, and it is SO' laid down by elementary writers; hut I am not aware that it has ever been held that the omission vitiated the sale. *It is also objected that the sale was not made at the place appointed by tbe notice. This objection is not well taken. The sale took place within a few rods of the Corners specified in the notice, and in plain view; so that persons coming there to bid upon the property would not fail to see and recognize the officer at the point where the sale was [161] made. The object and intent of the statute was not, therefore, violated, because the sale was not made at the precise point mentioned in the notice. It was made substantially, at the place appointed. A further objection is made, that the wheat being in three separate parcels, could not he sold together, hut that each parcel ought to have been sold separately. This is not required by the statute. The constable is required to expose the goods and chattels to sale at vendue, to the highest bidder. It is his duty to sell the property in such lots or parcels as to command the highest price; and if he wilfully sacrifices the property by disregarding his duty, he is liable to the party injured. But he has a large discretion, and is not required to sell each particular article separately. There is no reason apparent upon the record* in this case, for supposing that the wheat would have been sold for a better price in parcels. The interest sold was two-thirds of the crop, the purchaser being required to harvest and thresh the whole, and deliver one-third of it to Colgrove, while Perkins was present, forbidding the sale, and claiming .to he the owner of the two-thirds offered fórjale. Under such circumstances it may well he doubted whether the wheat would have sold as well in separate parcels; and if any sacrifice resulted from the sale as made, it was the fault of Baker and Perkins. I have examined the authorities referred to by the counsel for the plaintiff in error, and do not deem it necessary to cite them. They do not contain, so far as I can discover, any doctrine militating against the views herein expressed. The judgment of the Circuit Court, reversing the judgment of the County Court, and remitting this cause to the County Court for a new trial, must be affirmed, with costs to the defendant in error. Judgment of. Circuit Court affirmed.