APPEAL from an order of the Superior Court of the County of Pinal. E. L. Green, Judge. Order appealed from reversed and cause remanded, with instructions.
Mr. J. E. Morrison, Messrs. Cunningham & Carson and Mr. A. S. Gibbons, for Appellant.
Messrs. Anderson & Conway, Messrs. Chalmers, Fennemore & Nairn and Mr. J. Early Craig, for Appellee.
[38 Ariz. 161] LOCKWOOD, J.
On November 2, 1925, Young Mines Company, a corporation, hereinafter called defendant, executed and delivered to Citizens' State Bank a mortgage on some eighty mining claims situated in Pinal county, Arizona, together with certain fixtures and improvements on said claims specifically described in the mortgage and "all other fixtures, appliances, improvements or property of any kind or character now on or hereafter placed upon said mining claims. . . ." The mortgage was given to [38 Ariz. 162] secure the payment of a note for $50,000 in favor of the bank, and was acknowledged in the manner provided by law for both realty and chattel mortgages, and thereafter recorded in the office of the county recorder of Pinal county. Defendant defaulted in the payment of the note, and the bank afterwards sold and assigned the note and mortgage to H. A. Sevringhaus, in trust for certain stockholders of defendant who had contributed to a fund to buy the mortgage in order to protect their interests in the property.
On the seventeenth day of August, 1926, plaintiff, as trustee for said stockholders, filed this action in the superior court of Pinal county to foreclose the mortgage. Defendant answered, admitting the indebtedness, and alleged, among other things, that there was included in the mortgage certain personal property of sufficient value to pay off and discharge the note. The case was tried January 11, 1927, and taken under advisement until April 20th, when judgment was rendered in favor of plaintiff, the court finding generally that all of the allegations of the complaint were true, and describing in its judgment the property to be sold, following the language of the mortgage, and including all the property named therein without separating realty or personalty, and ordering that a special execution issue. On the same day the special execution was issued, directed to the sheriff of Pinal county, and commanding him to sell all the property described in the judgment, setting forth the property again in the language of the mortgage, without any segregation thereof.
On the sixth day of June, after notice according to law, all of the property was sold as a unit at the door of the courthouse in Pinal county to plaintiff for the full amount of his judgment, and the judgment was satisfied of record. No sheriff's certificate [38 Ariz. 163] of sale was ever issued, but on August 10, 1928, and some fourteen months after th sale, the sheriff executed his deed to said property in favor of plaintiff, and the same was delivered and recorded. A little over two months after the issuance of the deed, and sixteen months after the sale, defendant filed its motion to vacate and set aside the sale and deed on various grounds, which we shall refer to hereafter. The matter was heard by the court on evidence offered by both plaintiff and defendant, and again taken under advisement, and on January 24, 1928, the motion to set aside the sheriff's sale and deed was denied, and from the order denying said motion this appeal was taken.
It will be noticed that no appeal was ever taken from the judgment itself, and the time for appeal therefrom has long since expired. We must, therefore, consider it as in full force and effect, and in every way regular. Defendant in its motion set up many reasons why it alleged the sale to be invalid. Substantially speaking, they may be summed up as follows: (1) The property sold consisted of both realty and personalty, and it was sold as a unit, and not by separate parcels or by selling first the personalty, and, second, the real property. (2) The sale was made at the door of the courthouse, and none of the personal property attempted to be sold was at the place of sale or within view, or exhibited to prospective purchasers at the sale. (3) No certificate of sale was issued by the sheriff to the purchaser before he issued the sheriff's deed. (4) The personal property was claimed to be of more than sufficient value if sold separately to satisfy the judgment without the necessity of selling the realty. We will consider these various propositions in their order.
It will be observed that this sale is one made in pursuance of a judicial decree foreclosing a mortgage, [38 Ariz. 164] and the execution issued under paragraph 4116, Revised Statutes of Arizona of 1913, Civil Code, is a special one, and governed by the provisions of paragraph 1358, Revised Statutes of Arizona of 1913, Civil Code. It is the general policy of the law to sustain judicial and execution sales whenever it can be done without violating principle or doing injustice. Wheeler etc. Co. v. Miller, 73 Okl. 117, 175 P. 224; Northland Pine Co. v. Northern Insulating Co., 145 Minn. 395, 177 N.W. 635; Smith v. Pacific etc. R. Co., Ltd., 17 Hawai'i 96, affirming Ballentyne v. Smith, 205 U.S. 285, 51 L.Ed. 803, 27 S.Ct. 527; Stewart v. Severance, 43, Mo. 322, 97 Am. Dec. 392; Smith v. Crosby, 86 Tex. 15, 40 Am. St. Rep. 818, 23 S.W. 10.
The special execution issued in this case directed the sheriff to sell all the property
covered by the mortgage, both real and personal, and it was his duty to do so, subject, however, to the rules set up in paragraphs 1367 and 1368, Revised Statutes of Arizona of 1913, Civil Code, regarding the manner of sale. We quote the portions of those paragraphs applicable to the present case as follows:
"1367. . . . Real property shall be sold at the court house door of the county wherein situated between the hours of ten o'clock A.M. and four o'clock P.M. Personal property shall be sold on the premises where it is taken in execution, or at the court house door of the county, or at some other place, if, owing to the ...