PECARAVICH v. GILMORE

PECARAVICH v. GILMORE. (First Division. Juneau. May 4, 1918.) No. 155-KA. 1.' Mortgages <&wkey;526(l) — Execution—Confirmation. One Koel purchased property at an execution sale on mortgage foreclosure. A subsequent sale on an execution issued more than five years after judgment on a prior mortgage was made, and Koel objected to confirmation for that reason. Held, since Koel was not the judgment debtor, nor his representative, nor a party to the suit, nor bound thereby, he cannot be heard to object to confirmation of the sale in this case. 2. Execution <&wkey;242 — Confirmation of Sale. At common law, no confirmation of a sale on a legal execution was necessary. Confirmation of such sale is purely a statutory proceeding, and, when granted, attests simply that the proceedings connected with the' sale are regular. It is not res judicata as to any contention that the execution is void or fraudulent. R. A. Gunnison, of Juneau, for plaintiff. S. A. Plumley, of Ketchikan, for intervener. [MAJORITY — JENNINGS, District Judge.] JENNINGS, District Judge. The purchaser at an execution sale moves for confirmation of sale. Koel has filed objections to the confirmation of the sale, alleging (1) that the execution was issued at a date more than five years after the judgment, which judgment had never been revived; (2) that he (Koel) is in possession of the property, and is the successor in interest of a purchaser under foreclosure sale of a “second” mortgage given by judgment debtor; (3) that even he (Koel) holds subject to a prior “first” mortgage. At common law no confirmation of a sale on a legal execution was necessary, but a few of the states have provided for confirmation. Confirmation of such sale is a purely statutory proceeding, and, when granted, attests simply that the proceedings connected with the sale are regular. It is not res judicata as to any contention that the execution is void or fraudulent. 17 Cyc. pp. 1265-1269 et seq. No one can be heard to object to confirmation, except the judgment debtor, or, in case of his death, his representative. C. E. Alaska 1913, § 1115. Koel is not the judgment debt- or, nor his representative, nor a party to the suit. If he has lawful possession by virtue of a previous sale on foreclosure decree, his rights are not affected by the confirmation. When our statute gives the purchaser at a confirmed sale the right of possession during the period for redemption, it does not mean that the purchaser has that right’as against a prior bona fide grantee of the judgment debtor, or survivor of such grantee. Koel therefore cannot be heard on this proceeding. There being no other objection made or filed, the sale will be confirmed. <@=»See same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes