Henderson v. Fisher

BURNETT, J.

The action involved the validity of a sale of certain horses and mules under chattel mortgage of the same given in connection with a real estate mortgage to secure the payment of a promissory note of four thousand dollars and interest. The sale of said personal property was set aside by the court by reason of irregularity in the proceedings connected with said sale and, also, because the court found that said sale was unfairly and fraudulently conducted by the defendant with the “intent and design on his part to foreclose plaintiff’s equity of redemption in and to the mortgaged per

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sonal property and to purchase the same thereat for himself and for his own use and benefit at a sum far less than the actual value thereof. ’ ’

The irregularity in said sale consisted in the fact that the defendant was a purchaser of the property and that he disregarded the directions of plaintiff as to the order in which the property should be sold.

There can be no doubt that the findings of the court in these particulars are amply supported by the evidence, and that the said findings warrant the judgment that was entered in favor of plaintiff for the recovery of the sum of $1,941.66.

As to the sale, the law provides that it must be had at “public auction in the manner and upon the notice of sale of personal property under execution.” (Civ. Code, secs. 2967, 3005.)

Section 694 of the Code of Civil Procedure prescribes the manner of sale under execution, and the portions of this section particularly applicable to the case at bar are as follows: “Neither the officer holding the execution nor his deputy can become a purchaser or be interested in any purchase, at such sale. When the sale is of personal property, capable of manual delivery, it must be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price.” Furthermore, “the judgment debtor, if present at the sale, may also direct the order in which, the property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the sheriff must follow such directions.”