Leopold v. Furber

JUDGE LEWIS

DELIVERED THE OPINION OP THE COURT.

The plaintiff in this case in his petition asked . for personal judgment on two of the notes then due, and also for the enforcement of the vendor’s lien , and sale of the seven tracts of land for the satisfaction of all the notes given for the purchase money, although three of them had not then matured.

In accordance with the prayer of the petition, the court at its January term, 1884, rendered personal judgment for the aggregate amount of three of the *216 notes, the third having then become dne, and gave-the right to an execution thereon.

It was further adjudged at the same time that the plaintiff was then entitled to an enforcement of his lien on all the tracts of land for the payment of all five of the notes, as well those not due as those due, and the Master was authorized and directed to make sale thereof for that purpose. But it was provided that in case the plaintiff caused an execution to issue, the judicial sale should not be made by the Master until the return of the execution, and not then if the amount for which the personal judgment was rendered should have been satisfied by a sale under the execution, or by voluntary payment thereof.

From that judgment the defendant prosecutes this', appeal, and February 29, 1884, executed a supersedeas bond, in which, after reciting the judgment as rendered, that he had prayed an appeal therefrom, and desired to supersede it, he covenanted as provided by the Civil Code in such cases. And upon the execution of that bond the clerk of the court rendering the judgment issued a supersedeas, which, is still in force, commanding appellee and all others, to stay proceedings on the entire judgment, as well that part of it in personam as that part which enforced the lien and directed a sale by the Master.

Section 376, Civil Code, provides that, “in an action to enforce a mortgage or lien, judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.”

An answer was filed by the defendant in this case,, which was subsequently, for cause, stricken from the. *217 files, and afterwards an amended answer was tendered bnt rejected. Bnt as clearly neither the original or amended answer stated facts constituting a defense to the action, which counsel for appellant seem to concede, the judgment may be considered as having been rendered by default. And, as under the Civil Code, appellee was entitled to a judgment against appellant personally for' the amount of the three notes then due, there was no error by the lower court in, rendering it, and to that extent the judgment must be affirmed. And it, therefore, necessarily follows, that if the effect of the supersedeas was to stay execution which might otherwise have been issued and levied on other property of the defendant besides the seven tracts of land, appellee is entitled to damages.

By section 751 of the Code, it is provided, that “the supersedeas may be issued to stay proceedings on a part of the judgment, and in such case the bond shall be varied so as to secure the part superseded.”

But appellant in this case did not avail himself of the provision of that section of the Code. On. the contrary, reference is made in the bond not to a part, but to the entire judgment, and it is therein stated that appellant desires to appeal from it, and the order of supersedeas by its terms suspends all proceedings under it.

But we think the lower court erred in enforcing the vendor’s lien and directing a sale by the Master of any part of the land, while two of the notes given for purchase money were not due.

Subsection 3 of section 694, Civil Code, provides *218 as follows: “The plaintiff in an action to enforce a lien on real property shall state in his petition the liens, if any, which are held thereon by others, and make the holders defendants; and no sale of the property shall be ordered by the court prejudicial to the rights of the holders of any of the liens; and when it appears, from the petition or otherwise, that several debts are secured by one lien, or by liens of equal rank, and they are all due at the commencement of the action, or become so before judgment, the court shall order the sale for a pro rata satisfaction of them; but if, in such case, the debts be owned by different persons, and be not all due, the court shall not order a sale of the property until they all mature. If all such liens be held by the same party, the court may order a sale of enough of the property to pay the debts then due, unless it appear that it is not susceptible of advantageous division; or that, for some other reason, the sale would cause a sacrifice thereof, or seriously prejudice the interests of the defendants.”

It is not only stated in the petition, which is not controverted, but it is assumed in the judgment appealed from, that the land directed to be sold is not susceptible of advantageous division. And such being the case, it seems to us clear that no part of it could be legally adjudged to be sold until the last lien note fell due.

The appellant, in this case, was in default when the judgment was rendered only to the extent of the three notes that had matured, and only so much of his land could be legally subjected to sale as was *219 necessary to pay the amount of them. But as the land could not be advantageously divided, it necessarily resulted that all or none of it could be sold. To' sell and thus deprive the purchaser of the use and enjoyment of all the land, and of the means relied on by him to pay off the notes not due, would be unjust and oppressive. We think, therefore, the construction heretofore given to the subsection quoted by this court in the. case of Faught v. Henry, 13 Bush, 471 , is not only consonant with rea.son and justice, but with the obvious meaning of the language used, and it should be adhered to.

In that case, which was similar to this, it was expressly held, that “the court should not have ordered a sale of the house and lot unless it appeared it was susceptible of advantageous division until all the purchase-money was due.”

Wherefore, so much of the judgment as is in personam must be affirmed with damages; but that part -of it which ordered a sale of the land is reversed, .and the cause remanded for further proceedings consistent with this opinion.