State ex rel. Beck v. Yancy

Wagnjsr, Judge,

delivered the opinion of the court.

From the record it appears that a judgment was recorded against the defendant, Yancey, for $40 debt and $11.52 cost; and to satisfy an execution issued thereon the sheriff levied upon and sold a lot in the town of Butler, as the property of Yancey, for the sum of $157, which paid off the execution and left a balance of $94.35 in the sheriff’s hands. A deed was made to the purchaser, and the money due on the execution was paid to the attorney of the plaintiff' in the execution.

At the same term at which the sale took place, Yancey and Dixon, the latter having purchased’ the lot' from the former subsequent to the rendition of the judgment, appeared and *399 filed their motion to set aside the sale, mainly on the ground that the sheriff had failed to do his duty in not dividing the lot into parcels when he exposed it for sale. This motion the court sustained, and ordered that the sale be set aside, the deed canceled, and the purchase money refunded.

It seems that the lot in controversy is a corner lot, in the best business part of the town of Butler, and has a front of seventy-five feet on the courthouse square, by a depth of one hundred feet on another street. The witnesses on the motion all placed the value of the lot at from twelve hundred to fifteen hundred dollars, though it was shown that there was some difficulty about the title. It appears very clearly that lots of the same character were accustomed to being divided and sold in the town for business purposes, and that the lot in question was susceptible of being divided into three equal parcels of 25 feet each, fronting on the courthouse square, and would have sold in that way more advantageously for business purposes. One witness testified that he would have bid the amount of the debt for one-third of the lot. This goes conclusively to prove that more property was levied upon and sold than was necessary to satisfy the execution, had the officer exercised a sound and' proper discretion. The statute requires that when an officer makes a levy upon property, he shall divide the same, if susceptible of division, and only sell so much'thereof, as will be necessary to satisfy the execution. (Wagn. Stat., 608, § 30.) The provision is a wise one, and is intended to prevent the needless selling of more property than is required to pay off the execution debt. Therefore, where more property is sold by a sheriff under execution than is sufficient to satisfy the same, and the property could have been sold in parcels, the sale will be set aside on motion of a party whose rights are affected.

It is- insisted here that the parties- who filed this motion have no standing in court, because Yancey, the execution debtor, had parted with all his interest, and Dixon was not a party to the original proceeding: So far as Yancey is-concerned the position is correct. He had sold out his entire in *400 terest, and it was a matter of no consequence to him whether the sale was set aside or hot. But with Mrs. Dixon it was otherwise. She- owned the whole estate, subject to the judgment lien, and she was the party directly interested. The conjoining of Yancey with her in the motion could not be made'to militate against her rights.-

Upon the whole, we are of the opinion that the court exercised a sound discretion and did justice according to the mer-

its of the case, and its judgment will be affirmed.

All the other judges concur.