Heyman v. Babcock
Before: Also, Rhodes, Sanderson, Sawyer
Synopsis
Appeal from the District Court, Twelfth Judicial., District, City and County of San Francisco.
Ejectment to recover a lot of land in the City of San Francisco, lying in the angle formed by Centre and Valencia streets. Marcus Lowell, and Ellen, his wife, on the 4th day of December, 1855, executed to plaintiff a mortgage on the demanded premises. A judgment was rendered on the 15th day of September, 1856, foreclosing the mortgage and directing a sale of the mortgaged premises. On the trial the plaintiff offered in evidence a Sheriff’s deed of the demanded premises, which recited that an order of sale was issued on the judgment of foreclosure on the 15th day of September, 1856, and was delivered to the Sheriff, and that in pursuance of said order the Sheriff levied on, and on the 18th day of October, 1856, sold the premises at public auction according to law, after having given due notice. The referee to whom the case was referred found that Lowell and wife were in possession of the premises from the first day of January, 1855, until July, 1855, when they left, and the premises remained vacant for two years, when defendants entered. The defendants recovered judgment, and on plaintiff’s motion, the Court granted a new trial. Defendants appealed from the order granting a new trial.
The other facts are stated in the opinion of the Court.
Opinion — Rhodes
By the Court, Rhodes, J.: The first question for consideration is whether it is necessary that an execution or order of sale issue to the Sheriff', to authorize him to make sale of the mortgaged premises under a decree of foreclosure and sale of the character of the one presented in this case. The only order respecting the sale [369]contained in the decree, is that the mortgaged premises “ be sold according to law.” No directions are given as to the time, place, terms or manner of sale; nor is the duty of making the sale committed by the decree to the Sheriff.
The Sheriff does not bear such a relation to the Court that he must take notice of its orders and judgments; and without process execute and carry into effect those that require the aid of a ministerial officer. The general rule is that process is the authority of the Sheriff, and no reason is given why in case of a decree of foreclosure, and especially in one that is as devoid of all directions as the one before us, an exception should be found to the rule. When the mortgaged premises consist of parcels of land situated in several counties, it is evident that the rule contended for by the plaintiff could not be worked without producing great confusion and injury.
No express provision is found in the Practice Act prescribing the mode of making sale of the mortgaged premises under a decree of foreclosure, but the Courts have in a great number and variety of cases, acted upon the assumption that where no special provision is made in the decree, it is the duty of the Sheriff of the county in which any portion of the mortgaged premises are situated, to sell the portion of the premises within his county in the manner that he is required by law to sell real estate under execution against the property of a judgment debtor, and that the Sheriff acts under and by virtue of an order of sale issued upon the decree. The issuing of the order of sale is authorized, it is thought, by section two hundred and thirteen of the Practice Act; but whether it is so or not, it is very evident that the practice we have mentioned has too long been adopted and too uniformly acquiesced in, to be now changed by the Court on the ground that it was not fully authorized by that Act.
The plaintiff insists that the defendants are in error in saying that the referee found that there was no order of sale, etc. The referee did not so find; but when the Sheriff’s deed was offered in evidence, objection was made to its introduction on
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