Finch, Van Slyck, McConville v. Jackson , 57 N.D. 17 ( 1928 )

The defendant has filed a petition for a rehearing, insisting that the real property sold belonged to the estate of Peter Margach, that the interest of the defendant and appellant is as an heir, and that under the decision of Crosson v. Kartowitz,43 N.D. 466, 175 N.W. 868; Young v. Salzer Lumber Co. 52 N.D. 685, 204 N.W. 8, the levy was illegal. Second, that where land is in different tracts and sold en masse the period of redemption does not begin to run until after the sale is confirmed.

The notice of motion is silent on the question of ownership, but the affidavit of M.W. Duffy, attorney for the defendant, states, "that one Peter Margach died intestate leaving as his heirs at law, William Margach, a brother and sister residing in Scotland; that the estate of said Peter Margach, deceased, consisted of lands levied upon under the aforementioned execution, that the reasonable and actual value of the estate or interest of the defendant, William Margach in said estate is in excess of $6,000." This is a direct admission that the defendant, William Margach, had an interest in the lands levied on in excess of $6,000.

W.G. Tweed was sheriff of Griggs county at the time of levy and sale, and his affidavit shows that he filed a notice of levy in the office of the register of deeds of said Griggs county upon said land which is duly recorded in book 27 of mortgages at page 274. As sheriff of said county, he conducted all of the proceedings, and remembers that after the filing of notice of said levy in the office of register of deeds in Griggs county, that he served a copy of notice of said levy and also a copy of the execution which was attached thereto upon the said defendant, William Margach, who then lived upon the land in section fifteen.

A levy of execution is made in the same manner as a levy under a warrant of attachment, and under § 7547, Comp. Laws 1913, a levy is made upon real property by the sheriff filing with the register of deeds in the county in which the property is situated, a notice stating the names of the parties to the action, the amount of plaintiff's claim and a description of the property levied upon. The notice recorded in the office of the register of deeds and served upon the defendants, contains all the information that the statute requires, viz., the names of the parties to the action, the amount of plaintiff's claim and a description of the property levied upon and was therefore a legal levy.

Under § 7720, Comp. Laws 1913, "all goods, chattels, moneys and other properties both real or personal or any interest therein of the judgment debtors not exempt by law are liable to execution. Shares or interest in any corporation or company and debts and credits, and all other property both real and personal and all the property not capable of manual delivery shall be liable to be taken on execution." This section includes any and every interest that a debtor may have in any property, and the defendant admits that he had interest in the property levied on in excess of $6,000.

The case of Crosson v. Kartowitz and Young v. Salzer Lumber Co. supra, relied on by the defendant are cases in which the question of priority between a mortgage and an attachment lien are involved under the recording act, and are not in point.

There is no merit to defendant's contention that the period of redemption does not begin to run until after confirmation of sale. Section 7754, Comp. Laws 1913, provides, that the judgment debtor or redemptioner may redeem the property from the purchaser within one year after the sale on paying the purchaser the amount of his purchase with interest. The defendant now concedes that the sale was only voidable, and that a motion made before expiration of the period of redemption is timely.

There is no question but what the statute was not followed in the sale, by offering the different tracts separately, and if the motion had been made timely the sale would have been unquestionably set aside. In this respect the sale in the case of Power v. Larabee, 3 N.D. 502, 44 Am. St. Rep. 577, 57 N.W. 789, was grossly irregular. In that case 1,700 acres of defendant's land consisting of eleven distinct parcels was sold en masse for $96, and the court held, that by waiting sixteen months after sale before moving, the irregularity in the sale was waived.

In the case at bar, the defendant waited nearly three years from the date of sale, and nearly two years after the expiration of the period of redemption.

The order of the district court denying plaintiff's motion must be affirmed.

NUESSLE, Ch. J., and CHRISTIANSON, BURR, and BIRDZELL, JJ., concur.