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the exercise of a sound discretion upon this important subject is manifest.1

Moore v.

cially known to the courts. Winter v. not be noticed judicially.
Coxe, 41 Ala. 207.
Worthington, 2 Duv. (Ky,) 308.

The journals of a legislative body are not evidence to the courts as to what has been enacted by such body. and in the absence of other evidence, a court is not warranted in finding that a generai act has been passed by such legislative body, where such act has not been published amongst the laws, and no copy of it can be found enrolled in the office of the secretary of the territory, who is the lawful custodian of all original bills that have been properly passed. Graves v. Alsop, 1 Ariz. 274. Local Option in Counties.-Judicial notice is not taken as to the action of counties under laws allowing the exercise of local option, as to the liquor traffic. Morris v. Fraker, 5 Colo. 425.

The Habit of Smoking Cigars.-The court does not know judicially, that smoking a cigar, by one who has acquired the habit, is a necessity; and the sale of cigars on Sunday, in the usual course of the seller's business, to an habitual smoker of cigars, is in violation of the Sunday law. Meuller v. State, 76 Ind. 310.

Initials of Name of Railroad Company-Courts cannot take judicial notice that a well known railroad company is popularly known by the initial letters of the words constituting its full name; for example, that "C. B. & Q. R. Co." means the Chicago, Burlington & Quincy Railroad Company. So, held, where those initials alone were used to designate the party adversely interested in a petition to take depositions to perpetuate testimony under the provisions of the code; and the depositions so taken were not admissible in a subsequent action against said company, although someone filed cross interrogatories signed C. B. & Q. R. Co. Accola v. Chicago etc. R. Co. 70 Iowa 185.

Yeas and Nays.-The courts cannot take judicial notice that the yeas and nays were not entered on the journal on the final passage of an act appropriating money, although the amount claimed under it is not stated therein. Auditor v. Haycraft, 14 Bush (Ky.) 284.

Regulations of the United States treasury department, by which treasury notes made payable to a disbursing officer are not legally obligatory on the government until endorsed by him, will

A charge for commission or discount on a bill received in payment must be proved; courts will not take judicial notice of a mercantile usage to allow it. Ward v. Everett, 1 Dana (Ky.) 429.

Depreciation of paper currency cannot be judicially known, but must be proved. Bell v. Waggener, 7 T. B. Mon. (Ky.) 524.

Principal and Interest.-The court of appeals cannot ex officio notice that damages equal to principal and interest, in a covenant for bank paper, dated before the act allowing the recovery in kind, are excessive. Owens v. Holliday, 7 T. B., Mon. (Ky.) 297.

1. Oleomargarine.-Neither court nor legislature can have judicial knowledge of the merits or defects of oleomargarine so as to be able to declare it, hygienic value. Northwestern Manufacturing Co. v. Chambers, 58 Mich. 381.

Facts in the Record-An appellate court cannot take notice of facts in a record before it in deciding another case with which they are involved. Chittenden v. Wilbeck, 50 Mich. 401.

By-Law of Association.-A court cannot take judicial notice of a by-law of a benevolent insurance association. Portage Lake Miners & Mech's Benevolent Society v. Phillip, 36 Mich. 22.

Means of public information should be provided, where judicial notice is required to be taken of organizations incorporated under a general act. Shumway . Bennett, 29 Mich. 451.

Evidence of usage on the part of four railway companies, held, insufficient to establish a custom. Thompson v. Minneapolis etc. R. Co. 35 Minn. 428.

The court was asked, in the case at bar, to take judicial notice of the great losses which the Northern Pacific Railroad Company had sustained by reason

of Indian reservations and the settlements which had been made within the limits of its grant, prior to the final location of its line, and from this to assume that the selection of certain lands was in lieu of such losses sustained. Held, that the court could not take such notice. Elling v. Thexton, 7 Mont. 330.

The courts of the United States cannot take judicial notice of a justice of the peace in another State. In re Keeler, Hemp. (U. S.) 306.

JUDICIAL SALES (See APPRAISEMENT; DEBTS OF DECEDENTS; EXECUTION; EXECUTORS AND ADMINISTRATORS; FORECLOSURE OF MORTGAGES; GUARDIAN AND WARD; JUDGMENT; MORTGAGES; PARTITION; SHERIFF; SHERIFF'S SALES; TRUSTS.

I. Definition and Nature, 208.
II. Manner of Sale, 209.

1. Who May Make, 209.
2. Notice, 210.

3. Place, 213.

4. Publicity, 214.

5. Sale in Parcels, 214.

6. Sale for Cash, 217.

7. Adjournment, 217.

8. Sale After Return Day, 218.

III. Confirmation and Deed, 219.
IV. Purchasers, 222.

1. Who May Purchase, 222. 2. Bona Fide Purchasers, 223. 3. Title Acquired-Caveat Emp

tor, 225.

4. Rights of Purchasers, 229. 5. Liabilities of Purchaser, 233. V. Setting Aside and Resale, 235. VI. Redemption, 239.

1. Generally, 239.

2. Who May Redeem, 240. 3. Time and Manner, 241. 4. Effect, 243.

I. DEFINITION AND NATURE.-A judicial sale is a sale made under the process of a court having competent authority to order it, by an officer duly appointed and commissioned to sell.1 Strictly speaking, therefore, an ordinary sale on execution, or sheriff's sale, is not a judicial sale.2 But execution sales are often indexed and treated under the head of judicial sales, and they will be so treated in this article.

1. Williamson v. Berry, 8 How. (U. S.) 495, 547. "A sale by authority of some competent tribunal, by an officer authorized by law for the purpose," 1 Bouv. Law Dict., tit. Judicial Sale. See also Abb. Law Dict. 669, same title.

The court itself is regarded as the vendor in a technical judicial sale. Harrison v. Harrison, Md. Ch. 332, 333; Hurt. v. Stull, 4 Md. Ch. 391, 393; Armor v. Cochrane, 66 Pa. St. 308, 311; Bozza v. Rowe, 30 Ill. 198. And the sale is, in contemplation of law at least, made pendente lite. Rover on Judicial Sales, § 1.

2. Griffith v. Fowler, 18 Vt. 394; Gowan v. Jones, to Smed. & M. (Miss.) 164; Hershy v. Latham, 42 Ark. 305.

What Are Judicial Sales.-A foreclosure by notice and sale. Sturdevant v. Norris, 30 Iowa 65. An administrator's sale of land by order of court. Halleck v. Guy, 9 Cal. 181; Vandever v. Baker, 13 Pa. St. 126. A sale of land in partition proceedings, where it cannot be divided. Sacket v. Twining, 18 Pa. St. 199, 202; Hutton v. Williams, 35 Ala. 503. And in general all sales

made by order or decree under direction of the court, and requiring confirmation by the court, are judicial sales. Rover on Judicial Sales (2nd ed.), § 29. also Chew v. Hyman, 7 Fed. Rep. 7.

See

Execution or sheriff's sales have been

held to be judicial sales under the Indiana statute. Jackman v. Nowling, 69 Ind. 188; Taylor v. Stockwell, 66 Ind. 505. And a sale by an assignee under the voluntary assignment law, duly confirmed by the court, was held to be a judicial sale within the meaning of the Indiana act of March 11th, 1875, vesting the inchoate interests of married women when the title of the husband has been divested by a judicial sale. Lawson v. De Bolt, 78 Ind. 563. A conveyance by a register in bankruptcy is such a sale. Ketchum v. Schieketauz, 73 Ind. 137; McCracken 7. Kuhn, 73 Ind. 149. signee's sale in Ohio. Stein, 41 Ohio St. 70.

So as to asDresback v.

So in several of the States, where sales on execution are required by statute to be confirmed by the court, they are generally treated as judicial sales. See Griffith 7. Bogert, 18 How. (U. S.) 159, 164; Smith v. Arnold, 5 Mass. (U. S.) 414, 420; Eakin v. Herbert, 4 Coldw. (Tenn.) 116; Baily v. Baily, 9 Rich. (S. Car.) Eq. 392, 3955 Curtis v. Norton, 1 Ohio 278; Thompson v. Phillips, Baldw. (U. S.) 246, 272.

The appointment of the sheriff instead of a master or commissioner to make the sale under a decree, will not prevent the sale from being a judicial

II. MANNER OF SALE-1. Who May Make.-Where a sale is ordered or decreed by the court it must be made by the person designated in the order or decree, or under his immediate direction; but he may employ an auctioneer to conduct the sale in his presence and under his supervision. An ordinary writ of

one. Minnesota Co. v. St. Paul Co., 2 Wall. (U. S.) 609.

Distinction Between Judicial and Execution Sales. In judicial sales as distinguished from execution sales, the court controls the sale, acting through the person appointed to make the sale as through an agent, and the transaction is not generally complete or binding until confirmed by the court; while a sheriff, selling under an execution, gets his authority by virtue of the writ, and must be guided in the sale by the law rather than by the court, by whom it is not even necessary that his acts should be confirmed, unless the statute so provides. See Rover on Judicial Sales, §§ 13, 28. Andrews v. Scotton, 2 Bland (Md.) 629; McKee v. Lineberger, 69 N. Car. 219, Forman v. Hunt, 3 Dana (Ky.) 614, 621.

All of the authorities just cited clearly state the difference between judicial and execution sales, but in none, perhaps, are the distinctions more clearly drawn than in the case of Andrews v. Scotton, 2 Bland (Md.) 629. In that case, after showing that in a judicial sale the court itself is vendor, the opinion proceeds as follows: "But it may be said, if the court be the vendor in sales made by its trustee, would it not follow. for the same reasons, that a court of common law must be considered as the vendor in sales made under its writ of fieri facias by the sheriff? The cases are essentially different. The writ of fieri facias is a general authority or command to the sheriff to make so much money by sale from the personal estate of the defendant. By this writ the executive officer of the court is commissioned to seize the whole, any part, or so much of the defendant's personal property as may be necessary to raise the specified sum of money. No particular articles of property are ever designated. By statute this power given by the common law writ over personal estate has been extended over real estate. The real or personal estate with which the court of chancery deals is, however, always in one form other distinctly specified in the proceedings, and the sale is made only be

12 C. of L.-14

or

At

cause the court is asked to have it made to accomplish the objects of the suit. In the proceedings at common law, from the commencement to the fieri facias, no property is designated. At common law, the terms and manner of sale are regulated by law; in chancery, they are regulated by the court. common law, if the sheriff, in seizing the property and making the sale, conforms to the established regulations applicable to all cases (and he can sell in no other manner), the sale is final and valid as soon as it is made. But in chancery, the sale is, in no case, binding and conclusive until it has been ex pressly approved and ratified by the court. If it be made in a manner wholly different from that prescribed by the court, it may yet be sanctioned; or, if it be made in all respects conformable to directions, it may still be rejected. And hence it.is obvious that in one case it is the court of chancery who is the real vendor, and in the other the sheriff, or executive officer of the court."

Another distinguishing mark of judicial sales, as differing from sales on execution, at law, is that they occur only in proceedings wholly or partly in rem. Grignon v. Astor, 2 How. (U. S.) 319; Beauregard v. New Orleans, 18 How. (U. S.) 497, 502; Rover on Judicial Sales, § 31. And they are not, it seems, affected by the statute of frauds, while execution sales are within the statute. Rover on Judicial Sales, § § 23, citing Watson's Admr. v. Violett, 2 Duv. (Ky.) 332; Atty. Gen. v. Day, 1 Ves. Sr. 218; Blagden v. Bradbear, 12 Ves. 466. See also Warfield v. Dorsey, 39 Md. 299; s. c., 17 Am. Rep. 562.

209

1. Rover on Judicial Sales (2nd ed.) § 75; Freeman on Void Judicial Sales, § 29; Chambers v. Jones, 72 Ill. 275.

Where several commissioners are appointed to make the sale, all of them must take part in making it, in the absence of any statute to the contrary. Gross v. Pearcy, 2 Pat. & H. (Va.) 483.

2. Blossom v. R. R. Co., 3 Wall. (U. S.) 196, 205; Williamson v. Berry, 8 How. (U. S.) 495; Heyer v. Deaves, 2 Johns. (N. Y.) Ch. 154.

execution directed merely to the sheriff as such, without naming him, may be executed either by the sheriff himself or by his deputy. But a sheriff cannot make the sale where he is the execution plaintiff and entitled to the benefit of the writ.2 If the sheriff's term of office expires after he has made a levy but before the day of sale, he, nevertheless, has authority to make the sale, and may be compelled to do so.4

2. Notice. Such notice of the property to be sold and the time, place and terms of sale should be given as the law, or the court, in accordance with the law, prescribes. The object of ' the notice is to secure the attendance of purchasers and thus obtain a fair price, which is usually the result of competition. And where the notice is sufficient to attain this object, immaterial mistakes or irregularities are not generally fatal. But "if any mistakes or omissions occur in notices of sale which are calculated to deter or mislead bidders, or to depreciate the value of the property, or to prevent it from bringing a fair price, such mistakes or omissions will be fatal to the validity of the notice, and also to that of the sale made pursuant thereto." 6

A minute description in the notice of the property to be sold is not generally necessary if the description is sufficient to iden tify it and inform the public so that they may know what prop

1. Wroe v. Harris, 2 Wash. (Va.) 126; Tillotson v. Cheetham, 2 Johns. (N. Y.) 63. See also Glasgow's Lessee v. Smith, 1 Overt. (Tenn.) 144; Levett v. Farrar, Cro. Eliz. 294.

2. Riner 2'. Stacey, 8 Humph. (Tenn.) 288; Chambers v. Thomas, 3 A K. Marsh. (Ky.) 536; Collais v. McLeod, 8 Ired. L. (N. Car.) 221; s. C., 49 Am. Dec. 376.

3. Tyree v. Wilson, 9 Gratt. (Va.) 59; s. c., 58 Am. Dec. 213; Clark v. Sawyer, 48 Cal. 138; Lofland v. Ewing, Litt. (Ky.) 42; s. c., 15 Am. Dec. 41; Edwards v. Tipton, 77 N. Car. 222; Evans v. Ashley, 8 Mo. 183; Purl v. Duvall, 5 Harr. & J. (Md.) 69; s. c., 9 Am. Dec. 490. And see also authorities cited in note to Tukey v. Smith, 18 Me. 125; s. c., 36 Am. Dec. 705. But compare Tenn. Bank v. Beatty, 3 Sneed (Tenn.) 305; s. c., 65 Am. Dec. 58, Leshey v. Gardner, 3 W. & S. (Pa.) 314; s. c., 38 Am. Dec. 764.

And it seems that where a sheriff who has made a levy dies before sale, his personal representative may make Read v. Stevens, Coxe 264; Sanderson v. Rogers, 3 Dev. (N. Car.) L. 38.

it.

3 Scam. (Ill.) 207; s. c., 36 Am. Dec. 541; Lawrence v. Rice, 12 Met. (Mass.) 533.

So may his deputy. Lofland v. Ewing, 5 Litt. (Ky.) 42; s. c., 15 Am. Dec. 41, and note; Smith v. Bodfish, 39 Me. 136; Jackson v. Collins, 3 Cow. (N. Y.) 89; Tyree v. Wilson, 9 Gratt. (Va.) 59; s. c., 58 Am. Dec. 213.

5. Herman on Executions, 309, §. 199; Hoffman v. Anthony, 6 R. I. 282; s. c., 75 Am. Dec. 701; Freeman on Executions, § 285.

The object of the notice thus being to benefit the debtor and protect his rights, it has been held that he may waive it, and consent to a sale without advertisement. Burroughs v. Wright, 16 Vt. 619. See also as to waiver of defects in notice, by appearance in court. Helmer v. Rehm, 14 Neb. 219.

6. Note of Mr. Freeman to Hoffman v. Anthony, 6 R. L. 282; s. c., 75 Am. Dec. 701, 704. So far, however, as the purchaser is concerned, it has been held that the statutes providing for notice of the sale are directory merely, and that the failure to give the required notice cannot avoid the sale as against a purchaser not himself in fault. Mad4. Clerk v. Withers, I Salk. 323; dox v. Sullivan, 2 Rich. (S. Car.) Eq. State v. Roberts, 7 Hals. (N. J.) 114; 4; s. c., 44 Am. Dec. 234, and note; s. c., 21 Am. Dec. 62; Elkin v. People, Frink v. Roe, 70 Cal. 296; Burton

erty is meant. But the sheriff ought to give in his notice as full and complete a description of the property "as, in the exercise of ordinary diligence, it is possible for him to give, in view of its character, condition and location." 2

The time of sale should also be properly stated in the notice, and a mistake therein of such a nature as to mislead the public will render the notice insufficient. It is not necessary, however, that the exact hour appointed for the sale should be stated, if the time is fixed as between certain business hours of the day.

Spiers, 92 N. Car. 503; Ware v. Bradford, 2 Ála. 676; Freeman on Executions, § 286. Contra, Hughes v. Watt, 26 Ark. 228; Henderson v. Hays, 41 N. J. L. 387; Herrick v. Ammerman, 32 Minn. 544

1. Allen v. Cole, 9 N. J. Eq. 286; s. c., 59 Am. Dec. 416; Pomeroy v. Winship, 12 Mass. 513; s. c., 7 Am. Dec. 91; Stevens v. Bond, 44 Md. 506.

In a notice of sale under a mortgage it is generally sufficient if the property be described as it is in the mortgage. Model Lodging House Asso. v. Boston, 114 Mass. 133; Robinson v. Amateur Asso., 14 S. Car. 148. So if the record properly referred to where the facts may be found. Candee v. Burke, 1 Hun (N. Y.) 546; Judd v. O'Brien, 21 N. Y. 187. Compare Martin v. Baldwin, 30 Minn. 537.

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The following descriptions have

been held sufficient as to location: "Situated in the northerly part of the city of Providence, being the lot of land No. 10 (ten) on the plat of land of S. W., surveyed and platted by H. F. W., July 7th, 1845." Fitzpatrick v. Fitzpatrick, 6. R. I. 64; s. c., 75 Am. Dec. 681. "Lot No. 99 in Peter Beatty, Threlkeld & Deakin's addition to Georgetown, fronting 60 feet on Fayette street and 120 feet on Second street," the number of feet on each street being correct, but the addition wrongly named. Newman v. Jackson, 12 Wheat. (U. S.) 570. See also Pollard v. King, 63 Ill. 36. And it has been held that in the notice of a sale of land on execution the county need not be stated, if the description be otherwise sufficient. Duncan v. Matney, 29 Mo. 368; s. c., 77 Am. Dec. 575. The following descriptions have been held insufficient: "Lot 5, block 39," without stating in what town or city. Herrick v. Ammerman, 32 Minn. 544; "All the land" of the debtor in a certain county. Merwin 7. Smith, 1 Green (N. J.) Ch. 182. So it has been held

that a notice describing the tract of land to be sold as containing a materially larger or smaller number of acres than it consisted of in reality, is insufficient. Fenner v. Tucker, 6 R. I. 551 Wright v. Roussel, 5 La. An. 126. And "25 acres of land lying situate west of the railroad and close to and adjoining the said Wayne station," was held too indefinite a description in a deed and other proceedings in recent Texas case. Allday v. Whitaker, 66 Tex.

669.

2. Herman on Executions, 309, § 199; Freeman on Executions, § 285; Collier v. Vason, 12 Ga. 440; s. c., 58 Am. Dec. 481; Harrison v. Cachelin, 35 Mo. 79. See also Frazier v. Steenrod, 7 Iowa 339; s. c., 71 Am. Dec. 447; Merwin v. Smith, 1 Green Ch. (N. J.) 182; Helmer v. Rehm, 14 Neb. 219; Allen v. Cole, I Stock. (N. J.) 286.

3. Fenner v. Tucker, 6 R. I. 551. But it is otherwise where the mistake is obvious and not of such a character as to mislead. Mowry v. Sanborn, 68 N. Y. 153; Jensen v. Weinlander, 25 Wis. 477; Gray v. Shaw, 14 Mo. 341; Chandler v. Cook, 2 McArthur (D. C.) 176.

4. Coxe v. Halstead, 2 N. J. Eq. 311; Northrop v. Cooper, 23 Kans. 432; Burr v. Borden, 61 Ill. 3SS. Thus in the first case cited, a notice of sale "between the hours of twelve and five o'clock in the afternoon" was held sufficient. In the second case, "between the hours of nine A.M. and four P.M." was held sufficient. But where the notice was simply for a sale upon a certain day, without mentioning any particular hours, it was held insufficient. Trustees v. Snell, 19 Ill. 156; s. c., 68 Am. Dec. 586. Compare Thorwarth v. Armstrong, 20 Minn. 464.

It was held, however, in a recent case by the supreme court of Missouri, that where the hours for making such sales are fixed by statute, it is sufficient if the notice merely states the day of sale.

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