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execution sale: Vulcan Iron Works v. Edwards, 27 Or. 566, 36 Pac. 221.

A notice by the sheriff to claimant's attorney that he had decided to summon a jury to try the validity of claimant's right to property seized under execution, specified the time and place of trial and was given five or six days prior thereto. The notice was repeated to the claimant in person on the day before and again on the morning of the trial, and the postponement of the trial to suit plaintiff's convenience, if desired, was offered. Held, that the notice was sufficient: Sommer v. Oliver, 39 Ör. 453, 65 Pac. 600.

Where a claimant withdraws his claim before the retiring of the jury, a verdict that the property belonged to defendant in execution is of no effect, and the claimant

§ 230. Proceedings on Adverse Claim.

is not estopped from suing the officer for conversion: Singer Mfg. Co. v. Driver, 40 Or., 67 Pac. 111.

The remedy of the claimant on a bond, under § 232, post, is cumulative, and does not take away the claimant's right of action for the wrongful seizure of his property: Howard v. Conde, 22 Or. 586, 30 Pac. 454.

The costs and disbursements in such a proceeding can not be taxed in the original action: Schneider v. Sears, 13 Or. 78, 8 Pac. 841. This statute furnishes a summary method of trying a third person's title to personal property for the protection of the sheriff, but there is no such provision in regard to real property: Bank of Winnemucca v. Mullaney, 29 Or. 270, 45 Pac. 796.

The sheriff, at the request of either party, shall subpoena witnesses, and compel them to attend and give testimony, and he shall administer the necessary oaths to the jurors and witnesses. On the trial the defendant and the claimant may be examined by the plaintiff as witnesses, and the verdict of such jury being rendered in writing, and signed by the foreman, shall be a full indemnity to the sheriff proceeding in accordance therewith, but shall not preclude the claimant from maintaining an action at law for the recovery of the possession of such property, or for damages for taking the same. [L. 1862; D. Cd. §284; H. C. § 287.]

See note to § 229, ante.

§ 231. Withdrawing Claim, Costs of Trial.

The claimant, at any time before the jury retire, may withdraw his claim, or the plaintiff in the writ may, within the same time, direct the sheriff to discharge the property from the execution, and thereupon the trial shall proceed no further. The costs and disbursements of the trial shall be paid by the party against whom the verdict is given, or if no verdict be given, as in this section provided, then by the party who withdrew his claim, or directed the property to be discharged, as the case may be. The sheriff shall collect all such costs and disbursements, if not paid immediately, by levying on the property of the party liable for them, as on execution, and pay the same to the jurors, witnesses, and others entitled to receive them. [L. 1862; D. Cd. § 285; H. C. § 288.]

See note to § 229, ante.

§ 232. Indemnity to Sheriff, Sale Notwithstanding Verdict.

Notwithstanding the verdict of the jury be for the claimant, yet the sheriff shall proceed to sell the property seized in satisfaction of the execution, if the plaintiff tender to him a written undertaking, executed by two or more good and sufficient sureties, residents of the state and householders or freeholders therein, in double the value of the property, to the effect that he will indemnify the sheriff against all damages and costs which

he may sustain in consequence of the seizure and sale of such property, and moreover, that he will pay to the claimant of such property all damages which he may sustain in consequence of such seizure and sale. If such undertaking be given, it shall be returned by the sheriff with the execution. [L. 1862; D. Cd. § 286; H. C. § 289.]

See note to § 229, ante.



$ 233. Manner of Executing Writ.

When the writ of execution is against the property of the judgment debtor, it shall be executed by the sheriff as follows:

1. If the property has been attached, he shall indorse on the execution, and pay to the clerk forthwith, the amount, if any, of the proceeds of sales of perishable property, or debts due the defendant received by him, sufficient to satisfy the judgment;

2. If the judgment is not then satisfied, and property has been attached and remains in his custody, he shall sell the same or sufficient thereof to satisfy the judgment;

3. If then any portion of the judgment remains unsatisfied, or if no property has been attached, or the same has been discharged, he shall levy on the property of the judgment debtor sufficient to satisfy the judgment;

4. Property shall be levied on in like manner and with like effect as similar property is attached, as provided in sections 301, 302, and 304, omitting the filing of the certificate provided for in section 303;

5. Until a levy, property shall not be affected by the execution. When property has been sold or debts received by the sheriff on execution, he shall pay the proceeds thereof, or sufficient to satisfy the judgment, to the clerk by the day which the writ is returnable;

6. When property has been attached, and it is probable that such property will not be sufficient to satisfy the judgment, the execution may be levied. on other property of the judgment debtor, without delay. If after satisfying the judgment any property or the proceeds thereof remain in the custody of the sheriff, he shall deliver the same to the judgment debtor. [L. 1862; D. Cd. § 280; H. C. § 283.]

See $302, post; similar provision as to attachments.

The mere levy alone will not satisfy the judgment, but the property must be applied

to the judgment. One levy will not prevent another, if the property was not applied to the judgment: Wright v. Young, 6 Or. 87.

$234. Property in Possession of Garnishee, Execution Against.

In the case of property in the possession of or owing from any garnishee mentioned in section 304, the sheriff shall proceed as follows:

1. If it appear from the certificate of the garnishee that he is owing a debt to the judgment debtor, which is then due, if such debt is not paid by such garnishee to the sheriff on demand, he shall levy on the property of the garnishee for the amount thereof, in all respects as if the execution was against the property of the garnishee; but if such debt be not then due, the sheriff shall sell the same according to the certificate, as other property;

2. If, in like manner, it appear that the judgment debtor has rights or shares in the stock of the garnishee as provided in section 304, the sheriff shall sell the same according to the certificate, as other property;

. 3. If, in like manner, it appear that the garnishee has other personal property of the judgment debtor in his possession, and the same has not been bailed to such garnishee for a period then unexpired, unless the same be delivered to the sheriff on demand, he shall levy upon the same wherever he may find it; but if such property is in the possession of such garnishee upon a bailment then unexpired, the sheriff shall sell the same, or the interest of the judgment debtor therein, according to the certificate, as other property. [I.. 1862 ; D. Cd. § 281; H. C. § 284.]

PROCEEDINGS AGAINST GARNISHEE. -The proceedings of a sheriff upon execution against a garnishee are not affected by 309, post: DeWitt v. Kelly, 18 Or. 557, 23 Pac. 666.

Proceedings under this section are authorized in case the garnishee admits the indebtedness: Adamson v. Frazier, 40 Or. -, 67 Pac. 300; but where a warehouseman, on being served with a copy of writ of attachment and notice in a suit against his depositor, makes a certificate showing that he is in possession of certain grain received

from the defendant for which negotiable warehouse receipts were issued, such warehouseman is not estopped by the judgment in the suit against the defendant, or by the order for the sale of such grain, from showing that such depositor had transferred sucn receipts and the grain had been delivered to the purchaser, nor is he bound when he learns that such receipts had been transferred to notify the plaintiff or amend his certificate: Adamson v. Frazier, 40 Or. – 66 Pac. 810.

§ 235. Certificate by Garnishee, When Property Not Delivered.

When a sheriff with an execution levies upon any of the personal property mentioned in subdivision 3 of section 301, and if the same is not delivered, paid, or transferred to him at the time, and the garnishee furnish him the certificate required in section 304, he shall proceed thereafter in reference to such property as provided in section 234. Such property may be delivered, paid, or transferred to the sheriff at the time of levy, or sufficient thereof to satisfy the execution and the sheriff's receipt to the person, association, or corporation, as the case may be, shall be a sufficient discharge thereof. [L. 1862 ; D. Cd. § 282 ; H. C. § 285.]

§ 236. Debtor May Retain Property on Going Bond.

When the sheriff shall levy upon personal property by virtue of an execution, he may permit the judgment debtor to retain the same, or any part thereof, in his possession until the day of sale, upon the defendant executing a written undertaking to the sheriff, with sufficient surety, in double the value of such property, to the effect that it shall be delivered to the sheriff at the time and place of sale, and for nondelivery thereof an action may be maintained upon such undertaking by the sheriff or the plaintiff in the exe

cution; but the sheriff shall not thereby be discharged from his liability to the plaintiff for such property. [L. 1862; D. Cd. § 287; H. C. § 290.]

$237. Notice of Sale on Execution.

Before the sale of property on execution, notice thereof shall be given as follows:

1. In case of personal property, by posting written or printed notice of the time and place of sale in three public places of the county where the sale is to take place, not less than ten days successively;

2. In case of real property, by posting a similar notice, particularly describing the property, for four weeks successively, in three public places of the county where the property is to be sold, and publishing a copy thereof once a week, for the same period, in a newspaper of the county, if there be one, or if there be none, then in a newspaper published nearest to the place of sale, or in the newspaper published by the state printer. [L. 1862; D. Cd. § 288; H. C. § 291.]

NOTICE OF SALE.-A guardian's sale is conducted under the provisions of this section. Where the proof of posting notices is sufficient in form, but the jurat bears a date prior to that on which the notices were posted, as shown by the affidavit, but the return of sale recites such a posting and publication as the law requires, the misdate in the jurat will be deemed a clerical error, and the court will intend that the affidavit was made on same day after the notices were posted: Walker v. Goldsmith, 14 Or. 144, 12 Pac. 537.

It is not necessary that the publication should be during the four weeks next preceding the sale; it is sufficient that notice was published for four weeks successively prior to the sale: Walker v. Goldsmith, 14 Or. 145, 12 Pac. 537.

The notice must be published for twentyeight days, excluding the first day and including the day of sale: O'Hara v. Parker,

27 Or. 174, 39 Pac. 1004. A public sale of corporate property described by metes and bounds will not be set aside because the advertisement did not show the improvements, if there is no evidence that if it had been more fully described it would have brought a greater sum than was realized: Patterson v. Portland Smelt. Works, 35 Or. 102, 56 Pac. 407.

The return of the sheriff is sufficient as to the posting of notice though it does not show the date of posting. It is only in cases where such notice is jurisdictional that particularity of statement is required: German Loan Society v. Kern, 38 Or. 238, 62 Pac. 788; Bank of British Columbia v. Page, 7 Or. 455.

A notice of sale on a foreclosure decree which describes the premises as they are described in the mortgage and decree is sufficient: German Loan Society v. Kern, 38 Or. 239, 62 Pac. 788.

$238. Time and Place and Manner of Sale.

All sales of property upon execution shall be made by auction, between nine o'clock in the morning and four o'clock in the evening. After sufficient property has been sold to satisfy the execution, no more shall be sold. Neither the officer holding the execution nor his deputy shall become a purchaser, or be interested in any purchase at such sale. When the sale is of personal property capable of manual delivery, and not in the possession of a third person, association, or corporation, it shall be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price, and when the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately, or otherwise, as is likely to bring the highest price, or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion of it shall be sold separately. Sales of real property shall be made at the courthouse door. [ L. 1862 ; D. Cd. § 289 ; H. C. § 292.]

SALES ON EXECUTION.-The provision that in the sale of several known lots or parcels of real property, they shall be sold separately, is merely directory and not mandatory: Griswold v. Stoughton, 2 Or. 61; Dolph v. Barney, 5 Or. 211. The sheriff has the discretion of selling them separately or together, and unless there is an apparent abuse of this discretion the court ought not to set the sale aside for that reason: Bank of British Columbia v. Page, 7 Or. 455; Balfour v. Burnett, 28 Or. 76, 41 Pac. 1; Leinenweber v. Brown, 24 Or. 548, 34 Pac. 475. These authorities are followed in Bays v. Trulson, 25 Or. 116, 35 Pac. 26, a case of sale of city lots under city charter. Parties to a decree for the foreclosure of a mortgage, and who are bound thereby, are not "third persons" as to a sale under the decree within the meaning of this section. The term third person evidently means one who was not a party to the judgment or decree, but who has acquired a title to a portion of the judgment debtor's real property subsequent to the rendition of the judgment or decree, and is privy to and bound by it: Balfour v. Burnett, 28 Or. 75, 41 Pac. 1.

A sheriff's return to tax sale must show that it was at public auction as required by this section: O'Hara v. Parker, 27 Or. 174, 39 Pac. 1004.

The sale is inchoate and does not transfer title until consummated by execution

$ 239. Adjournment of Sale.

and delivery of deed in due course of law: Flanders v. Aumack, 32 Or. 26, 51 Pac. 447, 67 Am. St. Rep. 504, note.

Caveat emptor is the rule at all execution sales, and whoever buys at such sales does so at his peril: Burrows v. Parker, 31 Or. 61, 48 Pac. 1100, 65 Am. St. Rep. 812. His good faith will avail nothing against the true owner who is not a party to the process: Hexter v. Schneider, 14 Or. 187, 12 Pac. 668; Hoxter v. Poppleton, 9 Or. 482; but in an action by the purchaser for money had and received, constructive notice will not be imputed to plaintiff in order to make out that a payment made by him at a sale under execution issued without a judgment to support it, was voluntary: Hoxter v. Poppleton, supra.

A purchaser at sheriff's sale may enter, use, and occupy the premises sold. Such use must be for such ordinary purposes as the premises can be put to during the time he is in: Cartwright v. Savage, 5 Or. 397.

The purchaser at an execution sale when the execution issued without a judgment to support it acquires no title: Hoxter v. Poppleton, 9 Or. 484.

If a judgment creditor bid at the sale he may credit the amount of his bid upon the judgment debt, but any other bidder must make an unconditional bid: Patterson v. Portland Smelt. Works, 35 Or. 104, 56 Pac. 407.

If, at the time appointed for the sale, the sheriff should be prevented from attending at the place appointed, or being present should deem it for the advantage of all concerned to postpone the sale for want of purchasers, or other sufficient cause, he may postpone the sale not exceeding one week next after the day appointed, and so from time to time for the like cause, giving notice of every adjournment by public proclamation, made at the same time. The sheriff for like causes may also adjourn the sale from time to time, not exceeding thirty days beyond the day at which the writ is made returnable, with the consent of the plaintiff indorsed upon the writ. [L. 1862; D. Cd. § 290 ; H. C. § 293.]

By stipulation of the parties the sheriff may postpone the sale for thirty days, provided it is within thirty days of the return day: Mason v. Bennett, 52 Fed. 343.

§ 240. Delivery of Property to Purchaser.

When the purchaser of any personal property capable of manual delivery, and not in the possession of a third person, association, or corporation, shall pay the purchase money, the sheriff shall deliver to him the property, and, if desired, shall give him a bill of sale containing an acknowledgment of the payment. In all other sales of personal property, the sheriff shall give the purchaser a bill of sale with the like acknowledgment. [L. 1862; D. Cd. § 291; H. C. § 294.]

§ 241. Judgment Presumed Paid if no Execution Issued Within Ten Years. If, at any time after the entry of judgment, a period of ten consecutive years shall have elapsed without an execution being issued on such judgment

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