Meux v. Trezevant

California Supreme Court Apr 26, 1901 No. S.F. No. 1812.Published

Before: Cooper

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Holding. The court held that a foreclosure sale will not be set aside for failure to sell property in separate parcels where the commissioner followed the decree, the property was not clearly shown to be separate known parcels, and no injury or potential for a higher sale price was demonstrated.

Issues

Whether a foreclosure sale should be set aside for failure to sell property in separate parcels when the commissioner followed the decree and order of sale.
Whether the trial court's finding that the land constituted one known parcel rather than separate parcels should be disturbed on appeal.
Whether the defendant demonstrated sufficient injury to warrant setting aside the foreclosure sale.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The commissioner, in selling the vineyard property, followed the decree and order of sale. It was his duty to do so.”

“In a motion of this kind it must be made clearly to appear that the land consisted of separate “ known lots or parcels.””

“It must appear that there has been a material departure from the mandates of the decree, or the law governing such sales, to the injury of the party applying to have the same set aside.”

Synopsis

APPEAL from an order of the Superior Court of Fresno County denying a motion to set aside a sale under a decree of foreclosure of a mortgage. J. R. Webb, Judge.

The facts are stated in the opinion.

COOPER,C.

—Appeal from order denying motion to set aside sale under a decree of foreclosure. The mortgage to plaintiff described as part of the premises mortgaged the following: “The northeast quarter of the southwest quarter of section 33, in township 13 south, of range 21 east, Mount Diablo base and meridian, together with one fourth of one cubic foot of water from the Fresno Canal and Irrigation Company’s canal, appurtenant to said land.”

The decree contained the description precisely as in the mortgage, and after it was prepared and before it was signed, at the request of the judge it was presented to defendant’s attorney, who indorsed thereon, “ O. K. M. K. Harris,” whereupon it was signed and filed. The order of sale followed the description in the decree. The commissioner duly advertised the property, describing it as described in the decree and order of sale.

On the day of the sale, and at the time and place named in the notice, and before the sale, the defendants served a written demand upon the commissioner that the real estate be sold in separate parcels, to wit: “The county or vineyard property separately as lot one and lot two, block three, Nevada Colony, Fresno County, California, together with one eighth of one cubic foot of water from the Fresno Canal and Irrigation Company’s canal, appurtenant to said lots of land, a plat of which colony, showing this division of land of said colony, with lots so numbered and divided, is recorded in the office of the recorder of said Fresno County, and said property is generally known by its description as aforesaid, as colony lots, and also the Fresno City lots also separately as lot 21, block 204; lot 22, block 204; lot 25, block 337; and lot 26, block 337, all in said city of Fresno.”

The property referred to in said demand as the county or vineyard property as lot 1 and lot 2 is the said northeast quarter of southeast quarter of section 33, described in the decree and order of sale. The commissioners sold the property in five separate lots, selling the lots in the city of Fresno sep

[489]

arately, but sold the vineyard property in one parcel, as described in the decree and order of sale.

The court properly refused to set aside the sale.

Meux v. Trezevant

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Synopsis

COOPER,C.

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