Humboldt Savings & Loan Society v. March

HARRISON, J.

The above-named plaintiff commenced an action against the defendants, eight in number, for the foreclosure of a mortgage upon a tract of land about three hundred and fifteen acres in area. Service was made upon the defendants, and their defaults entered December 5, 1893. Judgment, directing a sale of the said land, was rendered November 28, 1894. Prior thereto,—viz., October 11, 1893,— George B. Sperry purchased from the defendants and became the owner of the northerly hundred acres of the said tract of land, and his deed of conveyance therefor was recorded on the same day in the office of the county recorder. March 2, 1894,

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a judgment was rendered in said superior court against five of the above-named defendants, in favor of one H. E. Williamson, and under an execution thereon the sheriff of said county sold to the appellant herein the interest of the said five defendants in said land, and on December 19, 1896, executed to him a sheriff’s deed therefor.

An order of sale was issued upon the judgment in favor of the plaintiff herein, November 3, 1899, and by virtue thereof the sheriff gave notice that he would sell the said land on the 27th of November, 1899. The judgment in the action directed that the land should be sold as a whole, in one parcel, and the sheriff’s notice of sale stated that it would be so sold. At .the time appointed for the sale, and before the sheriff had offered the land therefor, Sperry served upon him a notice that he was the owner of the afore-named one hundred acres, and demanded that he sell the remaining portion of said tract separately therefrom, offering at the same time to bid an amount sufficient to satisfy the judgment. Four of the defendants against whom the judgment in favor of Williamson had been rendered gave similar directions to the sheriff, and the plaintiff herein consented to the sale being made in that mode. An objection was made on behalf of the appellant to that mode of sale, but no gound of the objection was specified. The sheriff thereupon offered for sale that portion of the land not conveyed to Sperry, and sold the same for an amount sufficient to satisfy the judgment. Thereafter the appellant made a motion before the superior court for an order setting aside the sale. At the hearing of the motion, upon the above facts being shown, the court held that, “considering the parties and questions involved, the court ought not to adjudicate on the motion the matters sought to be adjudicated thereby, and thereupon dismissed the said motion. ’ ’ From the order dismissing his motion the present appeal has been taken.