Duncan v. Matney

Scott, Judge, delivered the opinion of the court. This is one of those suits, becoming so common under our present practice act, from which it is impossible to ascertain [374] wbat legal idea was in the mind of the attorney at the time he wrote the petition. It is alleged that the plaintiff, “ for the purpose of getting back the property illegally sold, had to pay out and expend and otherwise incur liability to the amount of two hundred dollars.” The petition then concludes with the averment that, by reason of said illegal levy, proceedings and sale of said land, the plaintiff has been damaged in the sum of two hundred dollars, for which he prays judgment. We infer from this that the plaintiff claims as damages, and as the measure of the loss he has sustained, the two hundred dollars he paid to obtain the restoration of the property sold. It is admitted then that the sale passed title. If that was the case, then the irregularity of the sale did not make it invalid. If the plaintiff then sustained an injury, it must have been by reason of the irregularities of which complaint is made. Now how does he make it appear that the payment by him of two hundred dollars was a natural and legal consequence of the irregularities ? If any irregularity had been committed by the officer in conducting the sale, and that irregularity, being known to the by-standers, had damped the ardor of bidders or in any manner caused a diminution of the sum that would otherwise have been realized from the sale, the plaintiff would be entitled to recover the damages he could show he had sustained by reason of the misconduct of the officer; but he does not allege that the proporty was sacrificed, or that the sale was injuriously affected by the matters of which he complains. That he gave two hundred dollars to regain his property is no evidence of the extent of the loss he sustained, or that payment was no legal and natural consequence of the misconduct of the officer. Such payment may have been prompted by motives with which the sheriff had nothing to do and which ought not to have affected him. Had his malice prompted the plaintiff to pay ten thousand dollars for the restoration of his property, could he have expected to recover that sum ? He had no right to fix the measure of his damages by a voluntary payment. [375] We will now examine the breaches of duty of which the plaintiff complains the officer was guilty. One of them is, that no levy was made. Our statute regulating executions declares that the word “ levy” shall be construed to mean the actual seizure of the property by the officer charged with the execution of the writ. (Section 74.) This, of course, only applies to property capable of being seized. The act regulating fees directs that when an execution is served on real estate, the officer shall be bound to go on the land or sufficiently near it if necessary in order to describe it properly. (Section 13.) Now it will be seen that the law is silent as to any notice to the defendant in the execution being requisite to constitute a valid levy, and also as to the manner in which a levy shall be evidenced. There is nothing in the case which shows that it was necessary to go on land to make a levy, which is not required if the officer is otherwise sufficiently informed in relation to the property to describe it properly. The twenty-fifth and thirty-fourth sections of the act regulating exerations giving the defendants the right to elect on what property executions shall be levied, and the order in which the property shall be offered for sale, are silent as to notice by the sheriff to those defendants. This is a subject for legislation, and the courts can not, without assuming-duties which do not properly belong to them, make rules in relation to it. A good officer, when it is practicable, will always inform a party of an execution he may have against him, if he believes he is not aware of it, and will confer with him before he makes a levy. But the defendant may be out of the way; he may be out of the county ; or, knowing the shortness of time in which a levy and advertisement must be made, he may keep out of the reach of the officer, and thus prevent a levy in time to make a sale before the return day of the process. In this way many abuses would creep in, which would he beyond any power of correction the courts possess. The law seems to have left to defendants, against whom executions have been issued, the duty of taking notice [376] of the fact. It is generally known to defendants, and laws are adapted to the cases which most frequently occur. In the event of abuse by the officer, or of collusion with the plaintiff or others, the courts can give redress by virtue of the control they possess over the execution of their process. It is singular that, under the circumstances, the court should have instructed the jury that the defendant admitted that he did not advertise the land. The defendant, in making the sale, acted as the successor in office to another. He had been in office but a few days before the sale. In order to make a sale at the return term of the court it was necessary to adopt the levy and advertisement of his predecessor and carry on the execution of the process begun by the officer whom he succeeded, and it is stated expressly in the answer that the land was advertised by the officer whom he replaced, and yet the court instructs the jury that he admitted that he did not advertise the land, and gives no explanation of the object of the instruction. Now what was the purpose of such an instruction ? Was it to declare that the successor in the sheriff’s office could not adopt the act of his predecessor in part execution of process ? Was he not bound to do it ? Could he subject the defendant to the cost of another levy and advertisement, without incurring a liability to an action ? It is not maintained that the successor must adopt the acts of his predecessor if he is satisfied that they are illegal and irregular. The plaintiff does not show that he sustained any damage by reason of the omission in the advertisement of the name of the county in which the lands were situated. It is generally known that the sheriff of one county can not, under an execution, sell lands lying in another; nor is it shown how he was damaged by the mistake he made in copying the description of the land levied on. The evidence shows that the land advertised was the land sold, and it is hard to see how a mistake in copying a levy from another paper on the back of the execution could prejudice the plaintiff. If the levy was properly made, a mistake afterwards committed in copy [377] ing it could not affect tbe legality of tbe sale. We have already said that tbe law is silent as to wbat shall bé tbe evidence of a levy; but if a levy is made, and a memorandum made of it on a separate piece of paper, and that memorandum before tbe return of tbe writ is copied on it, we see no objection to tbe regularity of such a course, nor to tbe officers using bis advertisement as evidence of a levy in making bis return to tbe writ. Tbe plaintiff’s own witness explains tbis whole matter. Tbe court erred in rejecting as evidence tbe advertisement of tbe sale. If it be said that it was inadmissible because it contradicted tbe defendant’s deed, it may be answered that although a deed can not be contradicted when used as evidence of the agreement and understanding of the parties to it, yet tbis deed was offered in evidence by the plaintiff merely as an admission of tbe defendant, and tbe rule is, that when an instrument, of whatever solemnity it may be, is offered merely as an admission made by tbe party executing it, it is always competent to him to explain it, and to show that be was under a mistake in making it, or to prove any other circumstances which will do away with tbe effect of tbe admission. Reversed and remanded. The other judges concur.