under judgments, warrants, or decrees upon obligations, liabilities, or debts, which were contracted or incurred prior to the tenth day of April, 1865, the officer making said sale shall, when so required by the debtor, at any time before the sale, sell the said personal property on a credit of twelve months, except as to the costs and the expenses of sale, which may be required in cash, taking from the purchaser's bonds, with sufficient surety, for the balance of the purchase money. The purchasers shall give their said bonds, payable to the creditor, provided that, for any excess of purchase money over and above the claim of said creditor, the said bonds shall be made payable to debtor. Whenever the property is sold under more than one process, the bonds, made payable to the respective creditors, shall be given according to their respective rights and priorities." Where by statute a speedy sale of perishable personal property may be made, only such property as is subject to natural and speedy decay is meant.' After giving due and legal notice of the time and place of sale, it is the duty of the officer, in default of payment by the debtor, to proceed and sell the property levied upon. The officer can not deliver the goods of the defendant to the plaintiff in satisfaction of his debt, but the goods must be sold,' and the money in strictness is to be brought into court. It is not a part of the duty of the officer to execute a bill of sale to the plaintiff at an appraised value, nor is he compellable to do so; for it might be very inconvenient and highly inju rious, if it were allowed. The legal and proper mode of compelling a sale, where the officer delays or refuses, is by a writ of venditioni exponas, upon which he must return the money into court. If the officer seizes goods, he is bound to find buyers; he is bound to sell where he receives a bond of indemnity, whether the goods are the debtor's or not; if he refuses, he is liable to 3 1 Webster v. Peck. 31 Conn. 495. 544. the value of the property;" Cameron v. Reynolds, Cowp. 406. 4 Clark v. Withers, 6 Mod. 293. Stone v. Pointer, 5 Munf. 287. and where he summons a jury to try the right of property, and they fail to agree;' or in case of a judgment by default against the claimant ; in some states, where there is only one bidder present. Where he seizes property on a writ issued on a fraudulent judgment,and while the goods remain in his hands, he is bound to seize and sell them under subsequent writ founded on a valid judgment.' The officer should conform as nearly as possible, in selling personal property taken in execution, to such rules as a prudent man would observe in selling his own property for the purpose of obtaining the best price : he can not lawfully sell goods en masse or in bulk, or without designating the articles to be sold, which consist of various specific articles. The sale must be at public auction to the highest bidder, and for cash. Cash does not necessarily mean coin, but ready money in contradistinction to credit.' And he is not justified, after he has sold as much as will apparently satisfy the writ, in selling any more. When the sheriff has taken goods in execution under a fi. fa., he may sell them without other direction, though his office be determined before the sale.' In order that the officer may sell property, it is necessary that it be levied on prior to the sale, as property not previously levied upon can not be sold." Connelly v. Walker, 45 Penn. 449. 1 Commonwealth V Herndon, 2 Dana, 429. Potts v. Commonwealth, 4 J. J. Marsh. 202. State v. Joyce. I Hay. 43. State v. Johnson, 2 Id. 243. Imray v. Magnay,2 Dowl. N.S. 531. 4 McLeod v. Pierce, 2 Hawks, 110. Den v. Twitty, 3 Id. 44. Den v. Hodges, Id. 51. Cresson v. Stout, 17 Johns. 116. McLean Co. Bank v. Flagg, 31 Ill. 290. Sheldon v. Soper, 14 Johns. 352. Mason v. White, 11 Barb. 173. Waring v. Loomis, 4 Id. 484. 'Swope v. Ardery, 5 Ind. 213. Chapman v. Harwood, 8 Blackf. 82. Swortzell v. Martin, 16 Iowa, 519. Aldred v. Constable, 8 Jur. 956. Day v. Graham, 6 Ill. 435. Hewson v. Dygert, 8 Johns. 333. Meeker v. Evans, 25 Ill. 322. Wheeler v. Kennedy, 1 Ala. 292. Davis v. Abbott, 3 Ind. 137. Clark v. Withers, I Salk. 223. Devoe v. Elliott, 2 Caines, 243. 10 Cook v. Wood, 1 Harr. 254. Berry $217. PERSONAL PROPERTY, HOW SOLD. It is the almost universal rule that all personal property must be sold in presence of the purchaser, and in the power of the officer to deliver possession to the purchaser.' Public sales of personal property not within the view of the bidders, are void, on the plainest principles of public policy,' but not if there is no fraud in the sale in Missouri,' or the debtor waives the necessity of its presence. If only a portion of the property is present, the sale of that portion is valid ;' in other states it is merely voidable." No one but the parties can take advantage of it.' Where the situation of personal property upon which a levy is made, and the interest of the parties require it, the officer may, in his sound discretion. and in good faith, advertise and sell it at more than one place. A sale need not be evidenced by a bill of sale, but may be proved by parol. If a bill of sale is made, it need not contain all the formalities of a regular certificate." A delivery of a bill of sale is a delivery of the thing sold, there being no adverse possession." Where the plaintiff in the execution is the purchaser, the officer may deliver the property without receiving the money; the amount for which the sale is made to such creditor may be applied as a 1 Smith v. Morse, 2 Cal. 524. Raun v. Reynolds, II Cal. 14. Smith v. Randall, 6 Id. 47. Toulumne, &c. Co. v. Sedgwick, 15 Id. 515. Burns v. Ray, 18 B. Monr, 392. Gaskell v. Aldrich, 40 Ind. 338. Blanton v. Morrow, 7 Ired. Eq. 47. Herod v. Bartley, 15 Ill. 58. Skinner v. Skinner, 4 Ired. 175. McNeely v. Hart, 8 Id. 492. Ainsworth v. Greenlee, 3 Murph. 470. Cresson v. Stout, 17 Johns. 116. Waring v. Loomis, 4 Barb. 484. Tibbetts v. Jageman, 58 IN. 43. Newman v. Hook, 37 Mo. 207. Stief v. Hart, IN. Y. 20. Cresson v. Stout, 17 Johns. 116. Sheldon v. Soper, 14 Id. satisfaction to the amount of the bid on the judgment on which the execution issues. In the sale of personal property, no title vests in the purchaser until the purchasemoney is paid; the officer can not dispense with actual payment by charging himself with the amount bid; unless it be in the case where the creditor is the purchaser. A sale between the debtor, creditor, and officer, by consent of parties, is valid.' The purchaser of a chattel at an execution sale has the legal property. A sale made by an officer on execution must be regarded as a legal transfer of the property, though the officer may not have conformed to the requirements of the statute in making the sale.' This may not apply to any description of personal property not tangible, and represented only by documentary evidence of title. § 218. OF THE TITLE THAT PASSES BY SALE. Where the sale is of the entire property in a chattel on execution, it is purchased with all its legal incidents, but if the sale is only of the debtor's interest in the property, the purchaser will then only stand in the debtor's place, with only such rights as the debtor could enforce.' The title which a debtor has in the goods at the time the lien attaches passes by the sale. While an interested party may have power to sell the whole of a chattel, an officer levying an execution on such chattel against such party and the other owners, can sell only their interest, whatever that may be, and not the whole chattel;' but where there are several defendants interested, their united interests may be sold together," and the buyer takes the thing sold." The title can not antedate the 1 Burroughs v. Wright, 19 Vt. 510. Nichols v. Ketchum, 19 Johns. 84. Russell v. Gibbs, 5 Cow. 390. State v. Lawson, 14 Ark. 114. 8 Burroughs v. Wright, 19 Vt. 510. 4 Storm v. Livingston, 6 Johns. 44. Tuttle v. Gates, 24 Me. 395. Richardson v. Kimball, 28 Me. 463. Tuttle v. Gates, 24 Me. 395. True v. Congdon, 44 N. H. 48. Boggs v. Hargrave, 16 Cal. 559. Fuller v. Allen, 16 How. P. 247. Hopkins v. Forsyth, 14 Penn. 34 10 Neilson v. Neilson, 5 Barb. 565. 11 Foster v. Cockburn, Parker's Excl 70. Jennings v. Carson, 4 Cranch. 26 Grant v. McLaughlin, 4 Johns. 34 The Tilton, 5 Mason, 465. date of sale as against bona fide purchasers, where the seizure is made only on the day of sale.' An unconditional delivery of the property to the purchaser renders the sale complete: by receipting to the officer for the property purchased, a party becomes the owner.' not If the property is pledged or mortgaged, he acquires the rights of the pledgor or mortgagor therein, on his com pliance with the conditions of such pledge or mortgage. Where a term in goods is sold, the purchaser may use them during the remainder of the term. A purchaser will acquire no title to property sold at an execution sale, if the property is owned by a person not a party to the action. The sale of A's property, on judgment and execution issued against B, will not pass any title to B's property. The English law in regard to sales in market overt does not apply in this country; or if subject to the lien of a prior attachment; or where the officer never took possession of it, or delivered it to the purchaser, and did have it at the place of sale. A sale of all the debtor's right, title, and interest in notes and judgments is null and void, where no actual seizure is made by the officer,' if a sale takes place without due authority of law;' where one of two joint-debtors, in fraud of the rights of his co-debtor, allows judgment to be taken against both, and then causes a sale of such debtor's property, he becoming the purchaser, when it is his duty to satisfy the judgment; or if made before the time specified in the notice, if the property is sacrificed." An indication of a void or fraudulent sale is where the debtor is allowed to retain possession 1 Allentown Bank v. Beck, 49 Penn. 409. Vanalstyne, 15 Barb. 568. Hewson v. Dygert, 8 Johns. 333. 5 Fuller v. Field, 39 Me. 297. Newman v. Hook, 37 Mo. 207. 1 Anderson v. Valentine, 15 La. 379. Carter v. Simpson, 7 Johns. 535. Ehrman v. Kramer, 26 Ind. 409. 10 Williams v. Jones, 1 Bush. 621. King v. Cushman, 41 Ill. 31. |