Pettingill v. Moss

By the Court — Flandrau, J. The question of the propriety of the injunction which was issued in the case of Moss vs. PetUngihl et al., and served on the Sheriff to restrain the execution in this action, was discussed and' decided on an appeal from the order dissolving the same. It was the duty of the Sheriff, on the service of the injunction upon him, to note that fact upon the execution and desist from all further proceedings under it, retaining, however, his levy; and if, at the end of sixty days from the receipt of the execution by him, no notice of the dissolution .of’the injunction reached him, then he should have returned the same, detailing the facts in his return; but if during the life of the execution it had been relieved from the injunction, then the Sheriff should have advertised the property again under his original levy, and have proceeded to sell in the ordinary way. His adjournment was irregular and in contravention of the injunction; there can be no guide for such a proceeding, as the injunction may or may not be dissolved, accorffing to the facts which may be alleged in the answer. The fact that the adjournment by chance was to a time which [225] accorded with the vacating of the injunction does not help the matter at all; there can be no means of anticipating the decision of the Court or regulating such a postponement. There is no irregularity in the fact that a sale is made after the return day of an execution. “ "When a Sheriff has levied an execution in due time, he may complete the same by sale after the return day.” Devoe vs. Elliot, 2 Cains. R. 243. This was a case of a sale of personal property, hut the same doctrine is held in the subsequent case of Wood vs. Colvin, 5 Hill 228, which was a sale of real estate. There is no reason for a difference in the application of the rule. The Sheriff is bound to serve his process within its life, hut may complete the execution of it after the return day. The sale under the adjournment in this case was irregular, and the property having been purchased by tbe creditor and remaining in his hands, the sale was properly set aside. Had it been purchased by a stranger, Section 111, on page 5T2 of the new edition of the Statutes, would have operated and saved the sale, as that section is designed to give credit to, and inspire confidence in judicial sales of property, and encourage bidders to purchase, by insuring certainty in the title they may obtain to those who are not presumed to know whether the Sheriff has performed all the preliminary steps required of him before sale; but its provisions do not extend to Plaintiffs who become purchasers under their own judgments. See Tillman & Christy vs. Jackson, 1 Minn. R. 183, where similar principles are involved under another provision of the statute in relation to Sheriff’s sales on executions. Order affirmed.