MASON tI. BENNETT.
not built said belt line, and was in default, except as above Iltated. Wherefore the cross complainant insists that the holders of said bonds are not entitled to receive from the proceeds of sale under the foreclosure payments upon the principal and interest of said bonds, but only upon the proportion thereof that the value of the four miles of said belt line that has been built flustainsto the value of the whole nine miles, and prays that the bonds may be scaled down accordingly. The demurrer must be sustained. The bonds were issued before the commencement of the work, in exact accordance with the stipulations of the contract, and Andrews was then invested with the title to them, and had the right to pledge or sell them. The averments that the purchaser or pledgee had full knowledge of the terms of the contract, and of the fact that Andrews had built only four miles of the belt line, are therefore wholly immaterial. It may be properly inferred from the contract thatjt was the intention of the parties that Andrews should have the bOnds in advance of the performance'of the work which hewasto do, in order to enable him by negotiating them to procure the funds he would require. The cross bill, therefore, does not state a case entitling the cross complainant to any relief, and it will be dismissed.
M.AsoN '11. BENNETT.
(mstrlct Court, D. Alaska. July, 1892.),
Under, Code Or. § 278, in force in Alaska, the return day of an execution is ascer· tained 6y computing 60 days from the day of its receipt by the marshal, and no' from the day of its issuance. When a levy is mil-de an execution before the return day thereof, the mar. shal may make the sale after the return day without new proceB8. '
SAMB-LEVY-SALE AFTER RRTURN DAY.
S.uol:E-SALB-CONFIRlIfATION-INADEQUACY OF PRICE.
Under Code Or. § 296, in force in Alaska, an execution sale cannot be set aside for mere inadequacy of price, in the absence of fraud, collusion, or substantial irregularity, to the iY).jury of t1!e complaining party, especially when the property consists of an undeveloped mining claim, the value of which is conjectural and speculative. '
At Law. Action by George M. Mason against William M. Bennett. Motion to confirm an execution sale. Granted. Delaney It Gamel and J. F. Malony, for plaintiff. John G. Heid and a. S. John80'Yl, for defendant. TRUITT, District Judge. The rer-ord in this case shows that "the plaintiff, on the 8th (lay of March, 1892, in this court, recovered judgment against defendant for the sum of $2,170.48, with a decree of foreclosure of the mortgage given to; secure the note sued upon herein, and for the sale of the mortgaged premises, which includes the real property, for the sale of which an order of confirmation is asked by this motion.
Within the time allowed by law, the defendant appeared and filed objections to the confirmation for the reasons'''First, that the sale is void, it having been made on the 91st day after the receiipt!:ifthe execntion, when said execution; at the time of sale, .was dead in the ,banda of the marshal, and should have been returned within ninety days to .tlll;lclerk's office from whence it issued; and, second. that no bidders were present at said sale, that the bid of tbe plaintiff, the execution creditor, herein, was the one. and only bid offered at such sale, and that the sum bid is so grosSI! iiiadequate to the vaille of the property sold, as to amount to an absolute and' unnecessary sRcrilice of the defendant's property." Section, '1 of the orgapic act, providing a civil government for Alaska, May 17, 1884, declaref' the general laws of the state of Oregon at that time in force to be the law in this district, so far aeapplicable and inconflict wit];l the act or the laws of the United States. By virtue of. tllisstatute; the execution in this case was issued in accord,;Wlth the prqvisions of title 1,. ,c. 3, Code Or. , and the proceedinglJ and their regularity must be them. this Il1otion and the objections. offered by the tion deb(or to its allowance, I ",ill up the .in regular order. The first is that the sale was' made after return day, aud is therefore void. This objection may be considered under two heads, viz., was this sale made after return day? and, if so, is it for that reason void? There seems to be some misunderstanding on the part of counsel as to how the return day .is to .bea,scertained or fixed in this case. Section 278, Code Or., is as follows: "The sheriff shall indorse upon a. ,wdt of execution the time when be reo ceives the same, and such execlltionshall be returnable within sixty days after its receipt by the sheriff to the clerk's office from whence it iSlIued." in regard to the postponement sales, it is provided that a sale may, for causes therein stated, beadjburned from time to time,notito 30 days beyond the return day. The execution in this' caEle was issued on March 14, 1892, but the marshal's return shows th.at it did not come into his hands until the 25th day of March, 1892.. 'rhis, then, is the date fron:1 which the 60 days mentioned in said sectibn'278 should be computed, and not the date of the execulion. ExdUdirig this day, and counting 60, the return day would be May 24, 1892. The marshal, however, set the 13th day of May, 1892, as the dajtofeale, but 'on that day the respective attorneys for plaintiff and defendant appeared" and aerved upon him a written stipulation, duly signed by ther,n,as such, attorneys. This stipulation is made a part of the return on ,the execution, and it is agreed therein that"The sale is hereby postponed for the term of thirty days, from said 13th day ·of May, '1892, to the 13th day of June, 1892, and the said U. S.marshal for the djstlcict, of Alaska is hereby authorized tQ. postpone the said sal& ,until the said 13th day of J.une, 1892, 8S above stipulated." This stipulation was no doubt made', and the sale adjourned, for the benefit of the defendant, and it is not claimed that he was in any manner injured by the adjournment. But without the stipulation the-
MASON V. BENNETT.
marshal could not have made an adjournment for a longer period than one week at a time, not exceeding 30 days altogether, beyond the day at which the writ is made returnable. The return shows that the sale was adjourned until the 13th day of June, 1892, according to said stipulation, and that the real property described herein was then sold to the plaintiff for 82,300. However, this was not more than 30 days yond the return day, which, as already shown, was May 24, 1892. But, if my views are correct on the second question raised by this first objection, it makes no difference whether the sale was in fact made after the return day or not; it is only necessary that the levy be made before thnt time. The Oregon statute says that the court shall confirm a sale of this kind unless it shall satisfactorily appear that there were substantial irregularities in the sale, to the probable loss or injury of the party objecting. Section 296, p. 363. It is not claimed that the defendant sustained loss or injury by this adjournment, but it was certainly deemed advantageous, or his attorney would not have made the stipulation which he did for it. I do not, under my views of the case,think it necessary to .pass upon what effect· that stipulation might have in sustaining the regularity or validity of this sale, were it irreglllar or void without it. Counsel for defendant refer to F'ctull v. Cooke, 19 Or. 455, 26 Pac. Rep. 662, to sustain their first objection, but the case is not in point. In that case the sale was made more than eight years after the date of the.axecution, and in the opinion STRAHAN. J., says: "It does not appear that the officer bad made a levy under the execution while it was still in force. The sole question. therefore, is whethe.!' or not a sheriff may hold an execution until long after the return day. and until his term of office has expired, and then make a levy and sale." The court very correetly held that such a writ is functus ojJicilJ, and confers no authority. But if the levy be made before the return day of the writ, the officer may sell afterwards on the same writ without a renewal of process. "It is immaterial to the purchaser, as to the validity of the sale, whether it be made before or after return day." Ror; Jud. Sales, p, 248, and numerous authorities there cited. This was passed upon and settled in the United States supreme court, at an early date, in Wheaton v. Sexton's Lessee, 4 Wheat. 503. In this case JOHNSON; J., delivered the opinion of the court, in which it is stated: "At the trial two bills of exception were taken; the first of which. brings up the question whether a sale by the marshal after the return day of tbe writ was legal. The court cbarged that it was. prOVided the levy was made before the return day, and on this point tbe court can only express its sur. prise·that any doubt could be entertained. The court belOW was unquestion. ably right in this instruction." In Remington v. Linthicum, 14 Pet. 84, the following is asserted as a settled proposition of law: "But if property, real or personal, is seized under a fieri facias before return day of the writ, the marshal may pro· ceed to sell at any time afterwards without new process." Accepting the law as laid down by these authorities disposes of this objection.
,'qiWin,;f\.('iw briefly notice the second :objection to the c6nfirmation. The
Pt6pe\lty\.:!oldis all undivided two-thIrds interest in a 10de claim in the
Harris: minillgdistrict in this territorYi andknownas the" Aurora Lode." There are tllree affidavits offered in'support of tbeobjecition of inadequacy! of price,.:'The execution !debtor makes one, in which he says he was offered lode in thesutnmer of 181M ,by a bona'fide purchliser..,' Inotle oftha· affidavits the value is estimated at $50,000, while the other affiAnt that,abcording to his hest judgment, the lode is worth at lelist $35;000 or $40,000. It was admitted in the argument that this lodeisundevel'()poo. It ieR well-knowufact that an undeveloped mining claim is property upon which it is very difficult to place even an approximate value. An undeveloI>edlodeis hid.denfrom the eye, buried perhaps deep in the earth, orextending';into the rocky: side of a mountain·. , Its real value isamatter ofconjectnl'e' for even mining experts. One 'might say a claim wa'$ worth $50,000, and another of as good judgment, with iequal honesty,' might say it was not worth the cost of clevelopingit.. Itis notclailned. that there was any fraUd, c:>l1usion, or irin the proceedings of the sale,and the law presumes that the officeraoted fairly and for the best interests of the parties concerned in conductilig the same. Secti!()n' 296?06de Or.i supra, Seems to give the cotlrtno discretion in caseS of this kind unless there Were substantial irregularities in the proceedings conceri.lirig the sale, to the probable 108B or ilijuryof the party who makes the objections to the confirmation. I have been unable to find a case where the supreme court of Oregon ever Bet aside a sale simply for inadequacy of price. Counsel for defendant cite Flint v. Phipps, 20 Or. 340, 25 Pae.Rep. 725, in support of their second objection, but in that case the defects in the writ, which the lower court allowed to be amended, were the primary reason for reversing the decree, The general policy of the law 'is to uphold and maintain execution sales. Rorer, in treating on this subject, "Ordinarily, ina:dequ8-cyof price is not alone sufficient cause for setting aside an execution sale which is in other respects unexceptionable." Ror. Jud. Sales, § 854. And Herman, in his very excellent work on Executions, states the rule to be ·"00urt8 will not in general set aside sales made under its process for mere inadequacy of price, intbeabsence of fraud and collusion. Inadequacy of price. within itself, can"pt ,be aground for setting aside a contract, or affording l'elief against it." Ex'ns,412. . In support of tbis rule the author cites a list of 70 different decisions, and in the case at bar Ifeel bound to adhere to it. Having thus disposed ofthe objections,'the motion for confirnllition is allowed. '
TRINIDAD ASPliALTPAYING 00.'11. ROBINSON.
TRINIDAD ASPHAJ,T PAVING CO.
(Circuit Court, E. D. Michigan.
April 11, 1892.)
C05TB-TAXATION-,AOTIONS AT L A W . ,
In actions at lawthe federal courts must tax the costs against the losiugparty, except in cases where special provision to the contrary, has been made by act of congress, (Rev. Btl. §§ 968,973;) and iu the absence of such provisiontheY.have no authori,ty to modify the rule by reason of hardship or inequity resulting from spe. cial oircumstances.
At Law. Action of replevin brollght by the Trinidad Asphalt Paving Company against Eugene A verdict was directed for plaintiff, and a motion for a new trial denied. The question as to whether costs should follow the judgment was reserved by the court, ancl is now up for ,deterwination. Judgment for plaintiff. Statement by SWAN, District Judge: ' This is an action of replevin for 766 barrels of asphalt that were formerly the property of Carter, Hawley & Co., of New York, both parties tracing title to them. The evidence is uncontradicted that plaintiff, wishing to obtain asphalt of Carter, Hawley & Co., whom plaintiff knew would not sell to it, employed one Coburn to make the purchase for it, -the Trinidad Asphalt COPlpany,-instructing Coburn not to reveal the name of his principal, but to make the purchase as for The asphaltwas bought for the benefit of plaintiff, who had the right to it as against its agent, Coburn, or anyone to whom the latter might deliver it, except a purchaser' in good faith and for value. Coburn, it seems from the facts found by Mr. Justice BROWN, who tried the case, went to Carter, Hawley & Co. for the plaintiff, but exceeded his authority in effecting the purchase. Instead ofrepresenting himselfsimplyas the principal in the transaction, or withholding the name of his employer, he untruly stated that he had no connection with the plaintiff whatever,-astatement which he had no authority from plaintiff to make. Carter, Hawley & Co. delivered to Coburn the asphalt, which he turned over to plaintiff. A month or two afterwards, Coburn made a contract with a, lighterman to go to South Amboy, where the asphalt lay, load it on board his lighter, and take it up the North river. The asphalt was accordingly laden on the lighter, and was insured for transportation to the docks of the plaintiff at Jersey City. Instead of thus forwarding it, Coburn diverted it from its original and proper destination, and sent it to Weehawken, when it was delivered to the West Shore Railroad for transportation and delivery to defendant, and in due course of time came into the possession of defendant, who in good faith had dealt for and purchased it through Coburn from Carter, Hawley & Co., whom he supposed to be the owners of it, and whom he paid for it. 'l.'he asphalt was taken from defendant's possession under the process in this cause. After the commencement of this suit defendant wrote Carter, Rawley & Co., who had received their pay for the property from plaintiff, througb Coburn, asking them to credit him with the amount