First National Bank v. Black Hills Fair Ass'n

Citations

• 2 S.D. 145
• 48 N.W. 852
• 1891 S.D. LEXIS 15

Syllabus

<p>1. In relation to the levy of an execution upon property, the last clause of Section 5119, Comp. Laws, provides that, “if no personal property be found., an endorsement to that effect must be made on the writ, before levy is made on real property. ” Where the return of the sheriff on the writ states that, “after diligent search and inquiry as required by law, I could find no personal property of the defendant whereby this execution could be satisfied in whole or in part, and I therefore made an endorsement on said execution to that effect, to-wjt, ‘No personal property found,’ ’’held, that this was a compliance with the reason and spirit of the statute, and all that was required before levying an execution on real property.</p> <p>2. If a defendant in execution has personal property, and it is sufficiently public so that an officer can know that it belongs to him, it is his duty to levy upon and sell it before levying upon and selling' real property.</p> <p>3. If a defendant has such'psrsonal property, and so conceals or places it out of the way that the officer cannot find it, if the defendant wishes to save his real estate, it is his duty to turn over or expose such property before the sale of the real property.</p> <p>4. Where real property, consisting of several known lots or parcels, has been levied upon, the lots or parcels must be offered for sale separately; but, if no bidders can be found for the separate parcels, the land can be sold in gross. A creditor cannot be deprived of the privilege of having the land sold en masse after the fact has been ascertained that it can not be sold in lots.</p> <p>5. Inadequacy of price of property bought at sheriff’s sale is not such an irregularity as will warrant a judicial or execution sale to be set aside, unless accompanied by other facts showing, or tending to show, that such inadequate price was brought about by other acts or irregularities that were unlawful, or that it resulted from mistake, accident, surprise,