Browne v. Ferrea

By the Court: Three separate tracts of land were levied on by the sheriff under the execution against the defendant, were advertised as separate tracts, but were sold in a mass as one entire tract. This was an irregularity, to correct which the defendant had his remedy by motion to set aside the sale on notice to the judgment creditor, sheriff, and purchaser at the sale. (Code Civil Procedure, 694.)

To uphold the sale would' be to deprive the judgment debtor of his right to redeem any one of the separate parcels.

Order reversed and cause remanded, with direction to grant the motion.

Wallace, C. J., dissenting:

It does not appear that the defendant had either the purpose or the ability to redeem, and it is affirmatively shown, and is found by the court below, that the premises sold for more than they would bring on a re-sale.

I am of opinion that, for a mere irregularity in the proceedings about the sale, productive of no appreciable damage, the proceeding ought not to be disturbed, especially against a third person purchasing at the sale and paying the purchase money in good faith, and in ignorance of the irregularity now complained of.

I therefore dissent from the judgment given here, and am of opinion that the order made below should be affirmed.