Brief Fact Summary. The Defendant, Brookshire/Miller (Defendant) appealed from affirmation of a sheriff’s execution and sale which sold the Defendant’s $50,000 property to satisfy a $2,000 judgment.
Synopsis of Rule of Law. A judgment debtor is to be afforded reasonable protection in levying on and selling his property under execution.
Absent evidence to the contrary, a federal court will assume that a prisoner gave his habeas petition to prison officials on the date he signed it, for the purposes of the AEDPA's one year limitations period.View Full Point of Law
Dorothy Constable recovered a $17,000 judgment against the Defendant Brookshire on July 29, 1960. A general execution was issued to the Sheriff on January 10, 1961 and he levied upon the Defendant’s 322 acres on January 11, 1961. The Defendant asserted that the selling of his farm was in error.
Issue. Whether it was error to sell the Defendant’s entire 322 acre farm without attempting to make the judgment debt, interest and costs out of a portion of the farm.
Held. Yes. Defendant is entitled to relief upon his performance of equity. The sheriff’s sale and sheriff’s deed made to Plaintiff was canceled. The Defendant had thirty days to deposit in court the sum of $20,600.
Discussion. Missouri Civil Rule 76.21 stated that if a judgment debtor gives the officer a list of his property sufficient to satisfy the execution, then the officer shall levy upon the property and no other, if in his opinion, it is sufficient. If not, then the officer will levy upon additional property as shall be sufficient. Civil Rule 76.24 further stated that when an execution is levied upon real estate, the officer levying it shall divide the property and if so, sell as much of it as necessary to satisfy the judgment, unless the debtor desires the whole tract of land or lot to be sold together. The general rule, therefore, was that the execution officer could make a division of the property and if practicable, sell only as much of it as necessary to satisfy the judgment.
A sheriff conducting an execution sale is the agent of the property owner and the judgment creditor and his duty is to protect the interests of both and to see that the property is not sacrificed. The Sheriff had testified that he did not know that it was illegal to sell $50,000 worth of property to satisfy a $2,000 judgment. The court noted that the property could have and should have been offered for sale in parcels. There was so great a disparity between the fair market value of the property and the bid price of $2,000, that the execution sale and sheriff’s deed had to be set aside.