Page:Federal Reporter, 1st Series, Volume 7.djvu/338

 326 FEDISEAL REPOBTBB. �McWlLLIAMS V. WlTHINGTON. [Oircuit Ouurt, D. Nevada.' May 9, 1881.) �1. TmB Ppbchasb fbom State— Sale— Execution. �The interest which a person has under a time purchaae from the State, while the contract remains in force, is property subject to sale upon execution. �2. 8AME — RlQHT OF PUKCHASKB. �The purchaser at such sale has a right to make the annual pay- ments and perfect the title. �3. SAME— DtTTT OF MOKTGAGOn. �In the absence of any false representation as to the extent of his interest or coutract, at the date of the mortgage under which the property is sold, it is not the duty of the mortgagor to perfect the title by making the annual paymcnta. �4. Same — Failtjre of Titi,e— Kemedt. �The proper remedy of a purchaser at execution sale is by motion in the same suit, in case of a total failure of title. 8. Same — Same. �Section 1300 of the Compiled Laws of Nevada is a rule of decision. �Kirkpatrick & Stephens, for plaintiff. �Robert M. Clarke, for defendant. �HiLLYER, D. J. This is a motion to vacate the satisfaction of judgment entered herein, set aside the sale, and revive the judgment to the extent of $4,000. It is based upon a peti- tion, and by agreement of counsel has been submitted upon the petition and the answer thereto. The petition presented a case of total failure of title, and a demurrer to it was over- ruled. The answer makes the following case, which is agreed to as true : �The property was sold by the marshal, September 3, 1879, and at that time Withington, the defendant, had entered into a time contract with the State of Nevada, under section 3820 of the Compiled Laws, for its pur- chase, and had made at least one annual payment. The contract was still in force. McWilliams bought the property for $4,000, and, on receipt of $2,000 in addition, entered satisfaction of the whole judgment on Octo- ber 9, 1879, and In March, 1880, rcceived the marshal's deed. On Novem- ber 17, If 79, no annual payment having been made by either Me Williams or Withington, the state, as it had a right to do under the law, sold the lands to other parties and issued patenta about December 16, 1879 ; so that at the date of the marshal's deed Withington had no interest in the property. ��� �