Bullard v. McArdle
Before: Harrison
Synopsis
Execution—Sale of Property—Purchaser must Show Valid Judgment at Date of Purchase. — One who deraigns.title to property through a sale under an execution must show, not only the execution and sale, hut also a valid judgment in support of the execution, and the purchaser must see, at his peril, that there is a valid judgment in existence at the time he make his purchase.
Id. — Judgment Essential to Power of Sheriff—Bona Fide Purchaser when not Protected—The sheriff in making a sale of property under an execution acts under a naked statutory power dependent for its existence upon the existence of the judgment which he is attempting to execute; and if there is no judgment in support of the writ of execution under which he makes the sale, the power to make the sale is wanting, and no title to the property passes, even to an innocent purchaser.
Id. — Sale after Extinction of Judgment—Power of Sale Destroyed. — Where a judgment in existence at the time of the issuance of an execution has been vacated or satisfied in any way, directly or indirectly, before any sale has been made, the power to make the sale has also been destroyed.
In. — Notice to Purchaser of Existence of Power.—The purchaser under a power is chargeable with notice if the power does not exist, and purchases at his peril.
Id. — Sale under Justice’s Judgment after Vacation of Order Dismissing Appeal.—Where an appeal was taken from a judgment recovered in a justice’s court, and the superior court dismissed the appeal upon the ground that no papers had been filed, and execution was thereupon issued upon the judgment in the justice’s court, and a sale of goods was made thereunder, hut before the malting of the sale, the superior court finding that, in fact, all the papers had been filed, vacated its previous order of dismissal, the sale under the execution issued out of the justice’s court passed no title to the goods sold.
Id. — Notice to Purchaser—Proceedings in Superior Court__The purchasers under the execution were charged with notice of the proceedings in the superior court as well as in the justice’s court, and they could not rely upon the fact that a copy of the order dismissing the appeal had been filed in the justice’s court, but assumed at their risk the regularity of that order, as well as any subsequent proceedings in the superior court, and their ignorance of the subsequent order vacating it, is not available to them in their attempt to retain the property purchased by them under the execution.
Id.—Effect of Appeal—Vacation of Justice’s Judgment—Jurisdiction of Superior Court—Presumption of Regularity of Orders. — An appeal from a justice’s court to the superior court upon questions of law and fact, upon the giving of a proper stay bond, deprives the former of all jurisdiction over the case, and vacates and sets aside the judgment therein, and the case is thereafter in the superior court, and the rights of the parties are to be determined by the action of that court, which is of general jurisdiction, and all of whose orders ave attended with a presumption of regularity.
Harrison, J. — A money judgment was recovered in the justice’s court against the plaintiff herein, on the 19th of July, 1889, from which on the same day he appealed to the superior court upon questions of law and fact, .giving a sufficient undertaking for the appeal, and to stay execution upon the judgment. The record on the appeal was filed in the superior court September 5, 1889, but on the 21st of October the plaintiff in the action, evidently not knowing that fact, obtained an order dismissing the appeal, upon the ground that the papers on appeal had not been filed. The appeal when filed had been numbered 2820 on the register of actions in the superior court, and the motion to dismiss the appeal, as well as the order of dismissal, were entitled as of a case No. 2909 on that register. On the next day after this order was made a certified copy thereof was filed in the justice’s court, and an execution upon the judgment appealed from was issued and placed in the hands of the officer for service. On the 29th of October the superior court made an order vacating its previous order dismissing the appeal and recalling the execution that had been issued out of the justice’s court, but no copy of this order was filed in the justice’s court. On the 7th of November the constable, by virtue of the execution, sold certain cattle of the plaintiff to the defendants herein, and immediately after the sale the plaintiff herein demanded the property from the defendants, and upon their refusal brought this action of claim and delivery. The property was delivered to him pending the action, and the court rendered judgment in his favor. The defendants moved for a new trial, which was granted, and the plaintiff has appealed from that order.
One who deraigns title to property through a sale under an execution must show, not only the execution and the sale, but also a valid judgment in support of the execution. (Blood v. Light, 38 Cal. 654; 99 Am. Dec. 441; Quirk v. Falk, 47 Cal. 453; Schuyler v. Broughton, 65 Cal. 252.) The sheriff in making the sale acts under a naked statutory power, dependent for its existence upon the existence of the judgment which he is attempting to execute, and if there is no judgment in support of the writ of execution, under which he makes the sale, the power to make the sale is wanting. By obtaining his judg-
[358]ment the plaintiff has become authorized to satisfy the amount therein named out of the defendant’s property, and the law designates the sheriff as his agent to effect this result. The sheriff is, however, but the agent of the plaintiff in making the satisfaction, and can exercise no greater power therefor than could the plaintiff' himself. Unless there is a valid judgment in existence, neither the plaintiff himself nor the sheriff has any authority to deprive the defendant of his property. Even though there was a judgment in existence at the time the writ of execution was issued, yet, if it has been vacated or satisfied before any sale is made under the execution, the power to make the sale has also been destroyed; and it is immaterial whether the judgment was directly satisfied or vacated, as by payment, or an order of court, or indirectly, as by granting a new trial in the action, or by an appeal whose effect is to prevent its execution. A different rule obtains when the judgment is vacated or appealed from after a sale of property under its authority. In such a case the bona fide purchaser is not affected even by a reversal of the judgment. It is, however, always incumbent upon the purchaser to see at his peril that there is a valid judgment in existence at the time he makes his purchase. (Hermann on Executions, sec. 255; Wood v. Colvin, 2 Hill, 566; 38 Am. Dec. 598; Frost v. Yonkers Sav. Bank, 70 N. Y. 553; 26 Am. Hep. 627; McClure v. Logan, 59 Mo. 234.) “The sheriff, in making sale of property under process of the court, acts under a power, and if the power does nut exist, no title passes, even to an innocent purchaser. He who buys under a power buys at his peril, and acquires no title without showing a valid, subsisting power.” (Carpenter v. Stilwell, 11 N. Y. 71.) “The judgment was the sole foundation of the sheriff’s power to sell and convey the premises, and if the judgment was paid when he undertook to sell and convey, his power was at an end, and all his acts were without authority and void. The purchaser under a power is chargeable with notice if the power does not exist, and purchases at his peril.” (Craft v. Merrill, 14 N. Y. 461.)
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