Ranney v. Orleans Navigation Co.

Bullard, J. This is an appeal from a judgment of the District Court discharging a rule taken by the plaintiff on the Sheriff and the defendants, as well as on the First Municipality, to show cause why the effects purchased by him, under the writ of fieri facias in this case, should not be delivered over to him. ' It appears that the Sheriff, in obedience to the writ, seized one mile of the rail road belonging to the defendants, with the iron, timber, and all the fixtures as it now stands, thirty pair of rail road wheels, with springs, boxes, axles, &c., two mud-machines, four fiats, three pile-driving machines, the contents of a blacksmith’s shop, one grindstone, about 4000 feet of lumber, 20 cords of wood, one desk and one table, together with all the fixtures, tools and apparatus thereto belonging: that the whole was offered for sale, in globo, the Sheriff producing at the time of the sale a certificate of the Recorder of Mortgages, showing an outstanding mortgage in favor of the First Municipality for $200,000, upon all the rights, privileges, immunities and titles of the Navigation Company, under its charter. The sale was not preceded by any appraisement. The Sheriff’s return shows that the plaintiff bid one thousand dollars, “ which bid,” says the return, “ under article 684 of the Code of Practice, did not constitute a sale of the property, and I, therefore, return this writ, nothing made thereon.” Thus it appears that there was no adjudication to the plaintiff according to the Sheriff’s return, nor does the testimony of the Deputy Sheriff, who was examined, establish the fact. On the contrary, the deputy told the plaintiff that it was no sale unless he assumed the mortgage according to the certificate of the Recorder; nor was there any appraisement of the property, and we are not [382] prepared to say that property of that description, can be legally sold by the Sheriff, without appraisement. Judgment affirmed.