Hopkins v. Wiard

Sharpstein, J. This is an appeal from an order setting aside a sale made by virtue of a judgment and order of sale in an action to foreclose a mortgage executed by the defendant to the plaintiff.

There is nothing in the record which tends in any degree to impeach the fairness of the sale; and it appears that the purchaser paid to the sheriff the sum bid for the premises, and that the sheriff paid it to the plaintiff.

Respondents’ counsel says that the “decree is satisfied of record, its authority is dead, it is not now a lien upon said premises.” This is claimed to result from the sale which has been set aside. The plaintiff was entitled to have the encumbered property sold. The court was authorized to-direct a sale of it. (Code Civ. Proc., sec. 726.)

The judgment contains a direction “that the said lands and premises-be sold as a whole and in one parcel.” The premises were so offered for sale, and sold as whole and in one parcel, although the sheriff was requested by respondents to sell in separate parcels.

The principal contention of the respondents is, that “the order inadvertently made by the court in the decree, directing that the premises be sold in one parcel, [261]was erroneous and void, and no act of the sheriff in selling or otherwise could legalize the same; and although the sheriff may have followed such (supposed) directions, the same, nevertheless, being illegal, because founded on an illegal decree, will be set aside, and in this case was properly set aside upon motion.”

There is nothing in the record to indicate that the court inadvertently decreed “that the premises be sold in one parcel.” It does appear that the decree was shown to the defendant’s attorney, before it was signed by the judge, and that said attorney wrote upon the margin of it, “This decree is satisfactory,” and signed the same as the attorney of E. Wiard, defendant. It further appears that the decree was so submitted to defendant’s counsel by direction of the judge. If the defendant’s attorney did not carefully examine the several clauses of the decree before indorsing on it his satisfaction, the fault was his own, as it appears from his own affidavit that he was given an opportunity to examine it, and was told that the judge desired he should.