2255

Judicial Sale Defined

Generally speaking, the process involved in a judicial sale, is not one where the United States seeks to forfeit property because of the illegal activity associated with the property. Rather, a judicial sale generally results from the United States asserting its interest in the property to obtain satisfaction because of some lien or other debt owed by the owner of the property. It has been recognized that: A judicial sale is generally defined as a sale made under a judgment or order of a court of competent jurisdiction by an officer legally appointed and commissioned to sell, who acts as a mere ministerial agent of the court which appoints him, such sale being subject to confirmation by the court, and becoming absolute only when so confirmed. 47 Am. Jur. 2d Judicial Sales section 1 (1984); cf. Yazoo & Mississippi Valley Railroad Company, et al. v. City of Clarksdale, 257 U.S. 10, 19 (1921); Pewabic Mining Company v. Mason, 145 U.S. 349, 362 (1891); United States v. Branch Coal Corporation, 390 F.2d 7, 9 (3d Cir. 1968); Prudential Insurance Company of America v. Land Estates, Inc., 90 F.2d 457, 458 (2d Cir. 1937); Laurel Oil & Gas Co. v. Galbreath Oil & Gas Co., 165 F. 162, 164 (8th Cir. 1908), appeal dismissed, 218 U.S. 685; United States v. Smith, 479 F. Supp. 804, 806 (N.D. Ga. 1979). In a judicial sale conducted in accordance with 28 U.S.C. §  2001, it is the court which conducts and supervises the sale and sets its terms: According to 28 U.S.C. § 2001(a), when any realty sold under any order or decree of any court of the United States shall be sold at public sale, such sale "shall be sold upon such terms and conditions as the court directs." It was therefore within the Court's discretion to order confirmation as a term and condition of this public judicial sale. United States v. Smith, 479 F. Supp. 804, 806 (N.D. Ga. 1979); See United States v. Branch Coal Corporation, 390 F.2d 7, 10 (3d Cir. 1967). In Yazoo & Mississippi Valley Railroad Company, et al. v. City of Clarksdale, the Supreme Court stated: We think that the language of this act [predecessor to 28 U.S.C. §  2001] limits its application to judicial sales made under order or decree of the court and requiring confirmation by the court for their validity, and that it does not extend to sales under common-law executions which issue by mere praecipe of the judgment creditor on the judgment without order of the court, and in which the levy and sale of the marshal are ministerial, do not need confirmation to give them effect, and only come under judicial supervision on complaint of either party. The sale in such a case depends for its validity on the marshal's compliance with requirements of law. Yazoo & Mississippi Valley Railroad Company, et al. v. City of Clarksdale, 257 U.S. 10, 19 (1921). [cited in USAM 9-115.310]