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wise, to constitute a judgment record valid upon its face so that it may be enforced by action, nothing more need appear by it than that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment was in fact rendered.52 In the abstract it is the general practice to give the name of the forum, together with case number or some other index for the purpose of reference; the full title of the case, and a statement of the fact of judgment, together with the amount for which it was rendered. A synopsis of the judgment is rarely given, nor is it at all necessary.
Unlike judgments in personam, which are ordinarily shown only by a brief reference, decrees and judgments in rem, or which affect or implicate title, are copied almost verbatim, or at least, are set forth with little condensation. Where a decree directly affects land, as in case of foreclosure or other action in rem, it is of vital importance that the description of the property involved be accurate and certain. The rules of conveyancing, which permit reference to extrinsic facts to aid the intention of the parties, have no application to descriptions found in judicial decrees, or deeds of conveyance founded upon them, nor can the assistance of equity be invoked to reform such descriptions.68 Hence, if the decree and resulting deed are so defective that it cannot be ascertained by inspection, or from data which they furnish, what property was in fact sold, or, if in order to ascertain the intention of the officer selling it becomes necessary to institute an extraneous inquiry, the proceeding will be void for uncertainty.54 From what has been said it will be per
# Maxwell vs. Stewart, 22 Wall., 77. W Lewis vs. Owen, 64 Ind., 446.
* Evans vs. Ashley, 8 Me., 177;
Bowen Vs. Wickersham, 124
ceived that an abstract of a decree can consist of little else than a copy thereof.
Orders of sale made by Probate Courts are a class of decrees that call for severe scrutiny, as these orders are essential parts of the title. It has been held that an order of court for the sale of land must, in itself, be sufficient without reference to extrinsic matters, and where the description is insufficient, the sale will be invalid.55
SECTION 27. JUDICIAL AND EXECUTION SALES.
No inconsiderable portion of the real estate of the country changes hands every year through the media of execution and judicial sales, meaning by such terms, all sales and transfers of property made in pursuance of the orders, judgments and decrees of courts, or sales made to obtain satisfaction of such orders, judgments and decrees. The term "judicial sale” is properly applied only to sales made in conformity to an order or decree directing same, and requiring a subsequent approval by the court.
by the court. "Execution sales,” though based upon a judgment, are made under the statute, for the recovery of a specific sum of money in satisfaction of the judgment Sales made under an execution must conform in all respects with the rules which the law lays down for the protection of the debtor. If not so made they may be held irregular and void. But sales made under the decree of a court are, to a considerable extent, under the discretionary control of the Court, which often sets them aside, although no error or irregularity has been committed, merely for the sake of an advance in price; or which may, if satisfied that no injustice has been done, disregard irregularities in
Crosby vs. Dowd, 61 Cal., 557; Hill vs. Wall, 66 Cal., 130.
the conduct of the sale, and confirm the action of the officer making same.
Statutory proceedings to divest title to land must be strictly pursued, and a substantial departure from the requirements of the statute will render the proceedings void. As a rule, however, the sheriff is presumed to have done his duty in making a sale, and to have complied with all the requirements of law. But this rule does not apply where the fact that the sale was in violation of the statute is apparent on the face of the record through which title is claimed. Great strictness is always required in conducting the sale, the details of which are regulated by express statutory provisions, and non-compliance with these provisions, as by offering the land in gross instead of in parcels, etc., will be sufficient to vitiate the proceeding, and the sale may be set aside, even as against a stranger who has bought the property and paid the price.56
The doctrine of caveat emptor applies to every purchaser at a sheriff's sale. He buys at his peril, and succeeds only to the right and title which the defendant in execution had at the time the judgment was rendered against him. The selling officer has no power to warrant the title and the purchaser is presumed to have made all proper examinations and to know what he is acquiring.57 The judgment is, of course, the foundation of the title, and the purchaser must see to it that at the time of sale such judgment is subsisting and unsatisfied, for, however innocent he may be, he can acquire no title when the power which confers the same has ceased to exist.58
60 Vass vs. Johnson, 41 Ind., 19;
Browne vs. Ferrea, 51 Cal., 552; Morris vs. Robey, 73 Ill., 462.
57 Atwood vs. Wright, 29 Ala., 346;
Bassett vs. Lockard, 60 II.,
164. 68 King vs. Goodwin, 16 Mass., 63.
While it is a cardinal rule that the execution must conform substantially to the judgment, or the sale will be void, yet it is not customary to more than allude to this instrument in the abstract of an execution sale, unless special instructions are given otherwise. Nor will an extended notice in most cases be necessary, as the purport and effect of the writ are generally recited in other of the proceedings under it.
A levy of lands is made by an indorsement thereof upon the writ, there being no such thing as seizure of the property. The sheriff, when levying on real estate, does not disturb the possession of the debtor, nor even his right of possession, and this constitutes the chief distinction between a levy on real estate and on personal property. In an abstract of the sale it is regarded as a minor detail, which may be briefly noticed in the return of the execution, but the certificate and deed supply in better shape the necessary information concerning it.
A sale of land under a decree must be made in the manner and on the terms prescribed in such decree, and a confirmation by the Court of the report of the officer will not cure the invalidity of a sale not so made. But a sale will not be disturbed unless the party suing can show an injury. resulting to him therefrom, while it is always the policy of the law to uphold judicial sales, and to protect the rights of purchasers under them. Although a decree may be afterward reversed, yet all rights acquired at a sale while the decree was in force, and which it authorized will be protected.
The title acquired under a sale by order of the court differs in no material respect from that obtained where the sheriff is the vendor. The purchaser is entitled to the interest of all the parties to the suit, and to the interest of any person who may have purchased during the pendency of the suit from any of the parties. But he acquires no new rights nor does the fact that the court is regarded as the vendor confer upon him any superior equities. A court does not insure the title to real property sold under its decrees, and the purchaser buys, presumably, with full knowledge of all defects and pre-existent liens. He is charged with notice of all facts disclosed by the record and he is bound to examine the title or purchase at his peril. If he buys without examination and obtains no title, he must, as a general rule, suffer the loss arising from his negligence, unless fraud or mistake has entered into the transaction. Prior to confirmation he has no independent rights, but is regarded as a mere proposer; after confirmation his rights become vested, and the sale will not be set aside except for fraud, mistake, surprise or other cause for which equity would give relief if the sale had been made by the parties in interest instead of by the court.
A purchaser at judicial sale has a right to presume that it is conducted according to the provisions of law, and proceedings in court, in a matter over which it has jurisdiction, will be presumed to be regular. Hence, a purchaser, at a sale made by order of such court, is not bound to look further back than the judgment or decree, and the legal effect it may have on the title which is the subject of inquiry.
After the sale, and before the execution of a deed, a report of sale must be made to the court which ordered same, and if upon examination the court approves the report it confirms the action of the officer who made the sale. Until this has been done the sale is incomplete Guynn vs. McCauley, 32 Ark., 97; Capebart ve Dowery, 10 W.'Va., 130.