Jensen v. Woodbury

Cole, J. The determination of this case involves the construction of section 3318 of the Bevision of 1860, which reads as follows: “ Jf the defendant is in actual occupation and possession of any part of the land levied on, the officer having the execution shall, at least twenty days previous 518 to such, sale, serve the defendant with written notice, stating that the execution is levied on said land, and mentioning the time and place of sale; and sales made without the notice required in this section, may be set aside on motion made at the same or next term thereafter.” In this case it is admitted, that the notice required by section 3318 was not given, and it furthermore appears that this motion was made in the manner and within the time contemplated by that section. A party who thus shows himself within the letter of the statute, has a legal right to have the sale set aside. Although the statute uses the words, “ may be set aside,” it does not thereby invest the District Court with such discretion as that its action cannot be reviewed on appeal; in other words, we are inclined to hold that the language shall be construed as mandatory rather than as permissive; and yet we are not prepared to hold that in every possible case within the letter of the statute, the sale shall be set aside. For instance, if it should be shown that the execution defendant had actual knowledge of the levy and the time and place of sale twenty days previous to the day fixed, whereby the object of the statute is fully met, it would be very competent for a court to hold the case to be not within the statute. It is claimed by the appellees that the execution in this case, being a special execution issued upon a mortgage foreclosure, is not to be governed by the general execution law. But a little reflection will show that the reason for the application of section 3318 to mortgage foreclosure cases, is much greater than in other cases, especially where the mortgage was executed prior to the Revision, and no right of redemption remained in the debtor after sale. Aside from the special cases, however, it is clear that the general execution law is alike applicable to all cases of sale under execution. Since the defendants, who are the plaintiffs in the motion, have failed to serve notice of their mo 519 tion upon Laer and Schütz, whose judgments have been satisfied by the surplus proceeds of the sale, and they are not, therefore, before the court for any determination of their rights, it would be improper for this Court to make: any order which would prejudice them. The judgment of the District Court will therefore be reversed, and cause remanded with directions to set aside the sale, and order ' that a new execution shall issue, and that, after the levy and due notice thereof and of the time and place of sale, the officer shall expose the property to sale for the amount heretofore bid by Dan and A. B. Stearns, together with-' ten per cent interest per annum thereon from the date of their bid up to the day of sale; and if no person offers more, the property will be again struck off to them at that sum; but, if more is offered, the sale will then be conducted as provided by law, and that amount first refunded to them1 in money, and the costs of such resale, will be paid by the defendants in the execution. Or, in case defendants shall pay to Dan and A. B. Stearns, or to the clerk of the District Court, for their use and benefit, the amount of their bid and ten per cent interest thereon to the day of payment, then no execution will issue, and in either event, judgment is to be satisfied.