Kelley v. Desmond

McKee, J. On the 20th of December, 1879, Margaret Kelly, Avife of her co-plaintiff Martin, purchased, at execution sale, a tract of land which had been levied upon by the defend[518]ant, as the sheriff of the city and county of San Francisco, under an execution regularly issued upon a valid judgment rendered November 22, 1879. In the complaint in the action, out of which the case arises, the pleader alleges that the interest of the execution debtor was of great value; that the purchaser paid to the sheriff the amount of her bid as the purchase money of the land; and that, after the payment, she discovered that the sale had been made without giving the notice prescribed by section 692 of the Code of Civil Procedure. But it does not appear that, upon that discovery, she took any steps to set aside the sale, or to have her purchase money returned to her. On the contrary, it does appear that she stood on her rights as a purchaser, and, after the time for redemption had passed, she demanded of the sheriff a deed to the land, but he refused to execute it.

Unquestionably, upon that refusal, she had her remedy. She might have resorted to a writ of mandamus to compel the execution and delivery of a deed, or she might have sued him in damages for a refusal to execute it. But instead of resorting to either of those remedies, the plaintiffs brought this action to recover the penalty prescribed by section 693, Code of Civil Procedure, for selling real property under execution, without notice. That section provides as follows:—

“ An officer selling without the notice prescribed by section 692 forfeits five hundred dollars to the party aggrieved, in addition to his actual damages”; and the question arises, whether a purchaser at execution sale, without notice, is the “ aggrieved party” within the meaning of the section.

We think he is not. Such a sale is either valid or invalid; it passes the title to the purchaser or it does not. If it be a nullity and passes no title, the purchaser sustains no injury, and no right of action for the forfeiture accrues. Such an action is not maintainable even by a party to the execution, unless lie has been deprived of his property by a sale under it without notice (Askew v. Ebberts, 22 Cal. 265); and if he has been deprived of his property by reason of the fact that it has passed from him by the sale to a purchaser at the sale, then the latter is not injured, for he has obtained what he bought.

Now, the real property of an execution debtor, levied on to