Connick v. Hill

COOPER, C.

This is an appeal from an order made by the superior court of Humboldt county refusing to set aside a sale made under foreclosure.

The plaintiff had regularly obtained a judgment and decree of foreclosure against defendants and others, and the court in the decree appointed one Belcher a commissioner for the purpose of making the sale. Ho directions were given in the decree as to the manner in which the property should be sold. The tract of land as a whole consisted of one body of thirteen hundred and forty acres. The commissioner, after receiving the order of sale, gave due and proper notice that on the seventh day of June, 1898, the said lands and premises would be sold in pursuance of the decree and order at public auction to the highest bidder, at the courthouse door, in the city of Eureka, at 10 o’clock A. M. of said day. At the time and place of sale the defendant Charles W. Hill, who was one of the judgment debtors, requested and directed the commissioner to offer the said lands for sale in sixty-three separate parcels. The commissioner complied with the request and offered the lands in

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the different parcels. He received no bid for either of the first forty-one parcels, but the parcels from forty-two to sixty-three, inclusive, were sold to different bidders, and no complaint is made as to the sale of any of these parcels other than the first forty-one. After the parcels from forty-two to sixty-three had been sold, tbe commissioner again offered the first forty-one lots or parcels for sale as a whole. The judgment debtor requested the commissioner to again offer the forty-one parcels separately, which request was refused. He then asked the commissioner to postpone the sale, which the commissioner refused to do. The first forty-one parcels were „then offered as a whole in one lot and sold to plaintiff for the sum of ten thousand four hundred and thirty dollars, which was about the balance due him after first applying the proceeds of the sales of the lots other than the forty-one. The appellants gave due notice that they would move the superior court to set aside the sale to plaintiff upon several different grounds.

It is claimed that the sale of the forty-one lots or parcels as a whole and in one parcel was an irregularity for which the sale should be set aside. We do not think so. The commissioner had complied with the request of appellant, and, without regard to the question as to whether or not the forty-one parcels were “separate known parcels,” had offered them for sale separately and received no bids. After the other parcels had been sold the appellants claim that they had the right to have him repeat what he had just done and again offer the parcels separately. If they had the right to have him again offer the parcels the second time at the same sale and before the same bidders, why not a third or a fourth? He had obeyed the dictates of the appellants to the letter, and after receiving no bids then did what he had a right to do under the circumstances—offered the property in a lump and received a bid sufficient to satisfy the judgment. He was not required to go through the idle ceremony of again offering the parcels separately. It is now the settled rule in this state that whenever separate known parcels of land are offered for sale separately in foreclosure proceedings, and no offer or bid made for either parcel, then the property may be offered and sold in one parcel.