Clark vs. Bergenthal. In the case last cited, LYON, J., said that "a summary proceeding supplementary to execution under the statute, instituted after the return of an execution unsatisfied, is a substitute for a creditor's bill in equity, and is governed by the same rules of law in respect to the rights and priorities of parties affected by the proceeding, which control the equitable action. In the creditor's suit, the general rule was, that the creditor who, after filing his bill, obtained the first service of the subpœna upon the judgment debtor, thereby obtained a prior lien upon the equitable assets of such debtor." Pages 655, 656. These sections of the statute clearly contemplate that, where a judgment is rendered in one county, and subsequently a transcript is filed and an execution is issued thereon to the sheriff of some other perhaps distant county from the first, where the judgment debtor then resides, and such execution is returned unsatisfied, the judgment creditor, at any time after such return is made, is entitled to institute supplementary proceedings before a judge or court commissioner of the county to which the execution was so issued. In other words, whatever be the county or circuit in which the judgment was rendered, the supplementary proceedings, under the sections. quoted, are to be instituted and had in the county where the debtor resides at the time. This being the policy of the statute, it should not be frustrated by construction. If the debtor in this case, after the rendition of the judgment, had moved to the most remote county in the state, and if, after transcript there filed, execution had been issued to the sheriff of such county and returned unsatisfied, and supplementary proceedings instituted therein, it would not, we presume, be claimed that the circuit court of Milwaukee county could immediately thereafter assume jurisdiction of such proceedings, and thus compel the debtor to travel hundreds of miles to answer before the court concerning his property. The very object of authorizing court commissioners and county judges to act in such matters at all, was to prevent Bamber vs. Savage. such abuses. If, in the case supposed, the proceedings could not be thus summarily interrupted, then, for the same reasons, we think the proceedings before Commissioner Ryan could not be interrupted by a simple transfer of the papers, as in the present case. This view is strengthened by the fact that the statutes expressly provide that orders made by a court commissioner in such cases "may be reviewed by the court." Section 2815, R. S. So sections 2434 and 2435, R. S., provide that such orders made by a court commissioner or county judge shall be "subject to review in all cases by the circuit court, as provided by law and the rules and practice of the court." It is the order or final determination of the commissioner or county judge which is to be thus "reviewed." Of course the word "review" precludes a mere continuation without reëxamination. It implies just what the word imports, and is too well understood in legal parlance to require definition. No authority has been cited in conflict with this view of the case taken, and the practice indicated would seem to be much the safer, and tend to much less confusion and annoyance. By the Court.-The order of the circuit court is reversed, and the cause remanded for further proceedings according to law. BAMBER VS. SAVAGE. March 26-April 19, 1881. Auction sale of real property — Statute of Frauds. Soon after real property of the plaintiff had been bid off by defendant at an auction sale, defendant orally agreed with plaintiff to pay a certain part of the price the next day, and the remainder a few days later. Soon after the sale, also, plaintiff's agent requested defendant to make a deposit with him, for the plaintiff, of some portion of the purchase money; and, upon defendant's excusing herself from so doing, and Bamber vs. Savage. promising to make it all right with plaintiff, he drew up a memorandum of the sale, and signed it for plaintiff; but this was never delivered to, or accepted or assented to by, defendant. No other memorandum of the sale was made, by the auctioneer or any other person. Held, that the sale was invalid, under the statute. R. S., sec. 2304. APPEAL from the County Court of Milwaukee County. Action to recover damages for defendant's refusal to accept a conveyance of, and pay for, land struck off to her, upon her bid, at a public auction sale. The complaint alleges that immediately after said sale, and in consideration thereof, defendant promised to pay plaintiff $1,000 on the next day, and the balance of said bid (which balance was $1,750) on or before the 1st of May, 1880; and that a memorandum in writing of the sale was made at the time thereof by John M. Connolly, plaintiff's duly authorized agent, in accordance with the statute. The facts shown by the evidence will sufficiently appear from the opinion. The cause was tried by the court without a jury, and the substance of the findings of fact was, that there had never been any contract of sale between the parties. From a judgment in favor of the defendant, the plaintiff appealed. For the appellant there was a brief by J. M. Connolly, his attorney, with Murphey & Goodwin, of counsel, and oral argument by Mr. Connolly. Wilson Graham, for the respondent. COLE, C. J. It is perfectly evident to us that in this case there was no sufficient memorandum of the sale made, to take the case out of the statute. The statute makes every contract for the sale of lands, or of any interest therein, void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is made, or by his lawfully authorized agent. Section 2304, R. S. The learned county court found, Bamber vs. Savage. upon the evidence, that the lot was offered for sale, and was sold at auction by Dixon, as auctioneer, who was duly authorized by the plaintiff to make the sale. There was evidence undoubtedly to support this finding, and we think it was according to the facts proven. It does not appear whether Dixon was a professional auctioneer or not. Certain it is that he made no memorandum of the sale. Whatever memorandum thereof was made appears to have been made by Mr. Connolly, who was employed by the plaintiff to sell the lot, and who subscribed the memorandum as the attorney and agent of the plaintiff. The circumstances attending the sale and the making of this memorandum are in brief these: The property was sold on the 16th day of February, 1880, by Dixon, acting as auctioneer, who struck it off to the defendant for $2,750, she being the highest bidder. Soon after the sale, in a conversation had between the plaintiff and the defendant, the latter verbally agreed to pay $1,000 the next day, and the balance of the purchase money before the plaintiff moved to Dakota, which he expected to do about the first of March following. Mr. Connolly states in his testimony that immediately after the sale he saw the defendant and asked her to make a deposit (it being understood that he was to receive the deposit as agent of the plaintiff and retain it until the sale was finally consummated), and the defendant made answer that she had no money with her, but she would make it all right with the plaintiff and wife, as they were old friends. He then drew up the memorandum in question. But it is clearly proven that this memorandum was never delivered to, nor accepted or assented to by, the defendant. Indeed it does not appear that the defendant ever knew of its existence until the time of the trial. It is not pretended that Connolly was acting as agent for the defendant, or had any authority to make the purchase for her. He was acting solely and exclusively as the agent of the plaintiff in whatever he said and did in the matter. This Bamber vs. Savage. being so, upon what principle can it be claimed that the defendant is bound by the contract, and must make good the difference between the price which she agreed to pay for the property and the price at which it was subsequently sold to Eaves? Where a memorandum containing all the essentials of the contract for the sale of land is made and signed at the time of the sale, by the auctioneer who sold it for the owner, it is well settled in law that this is sufficient to take the case out of the statute. The auctioneer is deemed to be the agent for both parties at a public sale for the purpose of signing the contract. Benj. on Sales, § 268; Tallman v. Franklin, 14 N. Y., 584. But "it has been decided that the memorandum of the auctioneer, to bind the purchaser, must be contemporaneous with the sale. It cannot be made afterwards." STORY, J., in Smith v. Arnold, 5 Mason, 414-419. See also Gill v. Bickwell, 2 Cush., 355; Horton v. McCarty, 53 Me., 394. In this case, as we have said, the auctioneer made no memorandum. The person who did make it was Mr. Connolly, who was acting exclusively as the agent of the plaintiff in the transaction. He had no authority to act for the defendant, and did not assume to act for her, in making the contract. And it seems to us it would be an extraordinary position to hold that he, acting as agent of the vendor after the sale was made by the auctioneer, could draw up a memorandum of the contract, sign it on behalf of his principal, and bind the vendee, who never saw it or assented to its terms. If this memorandum is binding upon the defendant, who never saw it, it would follow that parol evidence would not be admissible to show that it was incorrect; and this, too, though made by a party in interest. We know of no case which affirms any such doctrine. It is worthy of remark that the memorandum does not include the terms of sale as set forth in the complaint or proven on the trial. By the memorandum it would be implied that the consideration money was to be paid by the bidder on VOL. LII.-8 |