Amador ledger., 1909-03-05


the supreme court there say, "While
there. may be circumstances that
would justify an officer in postponing
a sale, it is clearly not an abuse of
discretion in all cases to refuse such
postponement."
AS to the power of public officer
to postpone an auction sale 1t is said
In vol. 26 Am. and Eng. ENJOY. of
Law, page 9l3, list edition) "a
trustee, mortgage, or public officer
charged with the duty of making
sales under powers, has always by
implication the power to adjourn the
sale to future day or from time to
time, II in his judgment the interest
of the parties will be promoted by
80 doing and IL he sees that proper
sale can not be made at the time ad-
vertised it would be not merely his
privilege, but his duty to postpone
the sale."
The same rule is laid down as to
the power of trustees under deed of
trust, to postpone sale, IN note to
Tyler vs. Henning on page 29l, in vol.
l9 American state Reports.
In the above mentioned note to
traaman VS. Fraaman, at page 653, it. is
said:
1T has long been the practice in
| tba Amarioon Nor, m, or tuaoItha ubora
an officer in charge of an execution or
judicial sale finds that the property
is about to be sacrificed, to order an
adjournment, and the law recognizes
the authority of the officer, Gin the
exercise of a sound discretion, to
change both the time and place oil
not, consistently with the rights oil
the parties or the performance of his
official duties, take place as original.
ly appointed" citing Phillips vs..
Conover, 25I II. 309, and numerous
other cases.
The preponderance of authorities
| HOomo W oobdDllSu bu0 IIRub VI du
officer charged with the duty q
making sale to postpone the same
for cause.
Estate of Leonis, 139 CAL, 1876,
cited by plaintiff, has no application
to this case. That was a case where
an administrator had Received and
accepted the bid of purchaser, and
the superior court had not only Ie-
fused to confirm the sale, but vacated
the order directing sale, and this
the supreme court decided the lower
court had no right or authority to do.
but had lost jurisdiction to set aside
the order of sale.
With the utmost research l have
been unable to discover but three
cases in United States where an order
has been sought as in this case, com.
manding an officer to accept a bio
and execute deed.
In Blossom vs.. The Milwaukee anc
Chicago Railroad Company. 8 Wallace
1876, the marshal under a decree oi
foreclosure and had advertised pro.
erty for sale at auction; Blossom was
the only bidder, and the marshal re-
fused acceptance of the bid and ad
journed the sale. Blossom thereupor
applied to the court to have the sale
confirmed to him, and in denying him
any relief the supreme court Of
United States. quoting from Fayne
VS.. Cave, L. r., l46. said: "Biding
at an auction is nothing more than
an offer on one side until it has re.
ceived the assent of the auctioneer as
of the agent of the owner" And
further. quoting from Story on Sales,
it said:
Speaking Of ordinary auction
sales. at an auction the author says,
that the seller may Withdraw the
goods or the bidder may retract his
bid at any time before they are struck
off, and the reason assigned for the
rule is, that so long as the final con-
sent of both parties Is not signified
by the blow of the hammer there is
no mutual agreement to definite
proposition.
In Mile vs.. Law, 73 A. Decisions,
80, (South Carolina) the commission
er on a partition sale refused to
accept the highest bid, but postponed
the sale, and the court there in deny
ing the rights of the bidder to compel
conveyance, said:
"Whether the commissioners render
ed himself liable, as for his miscon-
duct, in refusing to keep up the