Kimple v. Conway

Shabpstein, J. This is an action to quiet title. Judgment was entered against the plaintiff. She moved for a new trial, which was denied, and from that order and the judgment this appeal is taken.

The only question before us is, whether the evidence is sufficient to justify the decision. The grounds on which the court below based its decision, as stated in the transcript, are as follows:—

“ Defendants, Margaret and Patrick Conway, were husband and wife; a divorce was decreed between them, and their community property, including the land in controversy, was ordered to be sold by the sheriff, Mathew Nunan. The sheriff, under the decree, sold the property to the plaintiff, and, without reporting the sale to the court, executed a deed for the same to the plaintiff.

“ After the execution of the deed, the sale was reported to the court, and the court refused to confirm it.

“ Plaintiff claims title to the land in controversy under this deed. The sheriff, in executing the decree aforesaid, was not acting as sheriff, but as a commissioner, an agent [414]of the court. As a commissioner, his sale was incomplete until confirmed by the court. The deed made by the commissioner without such confirmation was void.

“ A certificate of purchase, so called, was issued by the sheriff to the plaintiff. It conveys no title, and is of no effect as a receipt for the money paid by plaintiff on the unconfirmed purchase. Plaintiff’s claim of title to the land in controversy, resting solely upon the deed and certificate aforesaid, is entirely without legal foundation.”

It appears that the property was sold by an order of the court, which is in the following words: “On motion of counsel for plaintiff, counsel for defendant consenting, it is further ordered and decreed that the property hereinbefore described be sold by the sheriff of the city and county of San Francisco, state of California, in the manner prescribed by law.

“And the said sheriff is hereby ordered and directed to sell said property forthwith and pay the said commissioner and said attorneys the sums of money herein-before specified in the order named; and in case a surplus remains, after making such payment, to divide such surplus equally between plaintiff and defendant.”

Section 147 of the Civil Code authorizes the court granting a divorce to order a sale of the community property, and a division or other disposition of the proceeds. Section 684 of the Code of Civil Procedure provides that “when the judgment requires the sale of property, the same may be enforced by a writ reciting the judgment or the material parts thereof, and directing the proper officer to execute the judgment by making the sale and applying the proceeds in conformity therewith.” The power conferred is ample, and the sheriff appears to have followed the directions contained in the judgment by making the sale in conformity therewith. The judgment did not direct the sheriff to report the sale to the