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Kunselman v. Kaser

Supreme Court of Arizona

December 21, 1932

C. H. KUNSELMAN, Appellant,
FRED F. KASER, Appellee

APPEAL from an order of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Conditionally affirmed.

Mr. John W. Ray for Appellant.

Mr. E. G. Frazier and Mr. Allan K. Perry for Appellee.


Page 328

[41 Ariz. 221] McALISTER, C. J.

This is an appeal from an order denying a motion to quash the sheriff's sale made under a special execution issued in the case of Fred F. Kaser against Charles H. Kunselman on a judgment of foreclosure directing the sale of mortgaged property. No question is raised as to the validity of the mortgage or the judgment of foreclosure, but the appeal deals almost wholly with the manner in which the sheriff carried out the special execution.

The record discloses that on the thirty-first day of March, 1928, Charles H. Kunselman and Rody Kunselman executed and delivered to Fred F. Kaser their promissory note for $25,000 bearing eight per cent. interest, the principal being payable in installments and the interest semi-annually. As security for the note its makers executed and delivered at the same time a mortgage on a lot, 110 by 140 feet, located on the west side of Third Avenue, just north of Van Buren Street in the city of Phoenix, and at a later date, to wit, December 14, 1929, and, as additional security therefor, a chattel mortgage on certain personal property, namely, the furnishings in the eight duplexes, or sixteen apartments, situated upon the above described lot. The defendants failed to pay the installments as they became due and on August 14, 1930, the plaintiff filed a complaint containing two causes of action, one foreclosing the realty and the other the chattel mortgage, and on November 24th thereafter a judgment for $28,154.22, principal and interest, together with ten per cent. of this amount additional as attorney's fee, was entered and this was followed by an order foreclosing the mortgage liens and directing the issuance of a special execution calling upon the sheriff to [41 Ariz. 222] sell the property, both real and personal, to satisfy the judgment.

Pursuant thereto an execution was issued and the sheriff sold the property, both real and personal, and made a return thereof in which he stated that he had seized and levied upon the property described and noticed the same for sale by publishing notice thereof for twenty-one days next before the day of sale in the "Chandler Arizonan," a weekly newspaper, and by posting for a like number of days three printed copies of the notice in the county of Maricopa, one copy at the door of the courthouse; that at 11 A.M. on December 20, 1930, at the premises known as Rose Place Apartments, 334 North Third Avenue, Phoenix, he offered for sale at public auction the personal property and at 2 P.M. at the door of the courthouse all the real property, and that all of said property was struck off to Fred F. Kaser, plaintiff, for the sum of $31,381.57, that being the highest and best bid and the amount of the judgment and costs.

Within six months following the sale the defendants moved to set it aside upon the ground that the sheriff had not complied with the law in making it and it is the correctness of the order denying this motion that the defendant, Charles H. Kunselman, asks this court to review.

He assigns only one error, namely, that the trial court erred in refusing to set aside the sale and quash the return of both the real and personal property, but he points out in support of this assignment a number of instances in which he claims the sheriff failed to follow the law in making the sale, nearly all of which appear from the return. The first of these that we consider is that the eight separate duplex buildings situated on the lot and known as Rose Place Apartments were sold as one instead of in separate and distinct parcels of land. Section 4222, Revised Code of 1928, permits the latter course to be taken "when [41 Ariz. 223] the sale is of real property, consisting of lands that may be sold in parcels" and the judgment debtor after directing that it be sold this way points out the order in which the parcels may be disposed of. The lot and the duplexes built thereon, both of which were covered by the mortgage, were not, so far as the record discloses, such that they could have been separated into parcels. But if they were, there is no showing that the judgment debtor directed that it be sold otherwise than as a whole. The situation presented is wholly different from that that would have existed had the duplexes been erected on separate and distinct lots and the judgment debtor had directed that they be sold separately and in certain order. In legal effect it is the same as though one large building containing a number of separate apartments had been placed on the lot.

The return shows that the list of personal property which consisted of the furniture in the sixteen apartments numbering about one thousand pieces, was also sold in one lot and not in separate and distinct parcels, and because paragraph 4222, supra, provides that where the sale is of personal property it must "be sold in parcels so as to bring the highest price" it is claimed that this sale was likewise illegal and should be set aside. The quoted language does not imply

Page 329

that personal property, in this case, furniture, shall in every instance be sold in separate and distinct pieces but always in such parcels as will bring the highest price. This made it the duty of the sheriff in the exercise of his best judgment to sell it in the manner that would attain this result, whether piece by piece, a number of pieces together, or all of them as one, and before a sale of it in either of the two last methods may be set aside it must appear that it would have brought a higher price if sold in the first. There was no showing to this effect and it was undoubtedly the opinion of the sheriff that the method [41 Ariz. 224] he chose was the one most advantageous to the mortgagors, and since the furniture had been selected and purchased for the apartments in which it was being used and was still needed, it would seem, in the absence of a showing to the contrary, that he was justified in acting upon the theory that it would bring more if sold as a unit rather than piece by piece. One mortgage covered all of it and the apartments composing the court in which it was in use were sold as a unit.

It is urged further that when the sale is of personal property capable of immediate delivery paragraph 4222, supra, requires that "it must be within view," and that since it was not where prospective purchasers could see it when bidding on it the sale is invalid. It is true the furniture was not removed from the various apartments and placed outside where it could be seen at the moment it was being auctioned off, but the sale was at the premises where any purchaser had the privilege of viewing it in the apartments, and this being true the requirement of the statute was sufficiently met, for the furniture was within view of anyone who desired to see it. Bank of Almyra v. Laur,122 Ark. 486, 184 ...

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