Federal Land Bank of Spokane v. Wood , 43 Idaho 502 ( 1927 )

E.N. and Sarah M. Wood, husband and wife, gave a mortgage covering three pieces of property to the Federal Land Bank of Spokane and a second mortgage on two of the same pieces of property to the Stockmen's National Bank of Nampa. The payment of the loan from the Federal Land Bank of Spokane was guaranteed by the Nampa National Farm. Loan Association. Wood and wife thereafter transferred the parcel on which the Federal Land Bank of Spokane alone had a mortgage to Judith C. Scholtz, since deceased, her interest now being held by her minor heirs, Thomas and Ruth Scholtz. The land mortgaged to the Stockmen's National Bank of Nampa was thereafter deeded to the bank by Wood and his wife. Judgment of foreclosure of the mortgage held by the Federal Land Bank of Spokane was entered against Wood and wife and the Nampa National Farm Loan Association and it was ordered that if any balance remained due a deficiency judgment should be docketed against the Nampa National Farm Loan Association but not against Wood and wife as they were non-residents of the state at the time. There was, however, no deficiency, the land selling for enough to more than satisfy the first mortgage.

At the foreclosure sale the sheriff sold the respective parcels of land in the order requested by E.N. Wood, represented by his attorney in fact, and contrary to the request of the Nampa National Farm Loan Association, which sale was later, at the request of the Nampa National Farm Loan Association and The Stockmen's National Bank of Nampa, set aside by the district court and the appeal is from that order.

C. S., sec. 6924, provides, among other things: "The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the sheriff must follow such directions."

Wood and the Nampa National Farm Loan Association were both judgment debtors though neither was in possession of the property at the time of the sale. The sheriff followed the directions of one judgment debtor. The two judgment debtors could not agree and it was therefore incumbent upon the sheriff to follow one or the other of the directions. The record does not disclose that the sheriff acted improperly, fraudulently or illegally in following the directions of Wood; hence the sale was valid and the order of the trial judge setting aside said sale is reversed, and it is so ordered. Costs awarded to appellants.

Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.