Hobein v. Murphy

Leonard, Judge,

delivered the opinion of the court.

1. The notice of execution required by the act of 12th March, .1849, to be given to a judgment debtor, who is a non-resident .of the county in which the land to be sold is situated, is not ■ necessary in a sale of mortgaged land made under a special fieri facias.

Although the language of the statute is general, embracing i in its words all execution sales of land situated in a different ■ county from that in which the judgment debtor resides, we *449 think it must be limited in its operation to cases falling within the mischief intended to be remedied; and that this is clearly not a sale of that character. Debtors frequently own land in different counties of the state, and creditors, not for the purpose of collecting their debts, but in order secretly to purchase their debtor’s land at a sacrifice, sent their executions to dis--tant counties upon errands of speculation, and b-uying there without competition, got landed property for a mere nominal consideration ; and to suppress such frauds, this notice to the debtor was required.

It is true that the debtor can always protect himself by paying what he owes ; but the legislature have thought proper to provide this additional protection against what they considered unfair conduct on the part of the creditor, and it is our duty to give proper effect to the provision, without, however, extending it to cases which, although perhaps within its words, are certainly not within its spirit. The defendant in this execution knew, for such was the general law, that this land must be sold under this judgment before any other property could be touched by it, and that the sale could take place only in the county of Franklin. The material fact, then, required by the legislature to be communicated to the debtor, in what county the creditor elected to subject his debtor’s land to execution, was already known to him, and therefore there is no reason for our considering such a case as falling within the requirements of the statute.

2. We think proper to remark here that we consider this provision as merely directory, even in the cases to which it is applicable, so that the omission to give the required notice would not ipso facto annul the conveyance, but proper relief would be administered to the party injured according to the circumstances of the case. If the party whose duty it was to give the notice had acquired the title, there would seem to be no reason why, in a direct proceeding against him for that purpose, the sale should not be set aside and the property restored ; and when this relief could not be had, on account of the interposition of *450 a fair purchaser, who had paid the price and received the conveyance, the remedy would necessarily he confined to pecuniary damages, assessed against the wrong doer.

For the reason given, however, this judgment must be reversed ; but we shall remand the cause in order to give the plaintiff an opportunity of applying for leave to amend, if he so desires, and has any other ground that will entitle him to the relief he seeks. The other judges concurring, the judgment is reversed, and the cause remanded.