Hibernia Savings & Loan Society v. Behnke

HARRISON, J. This is an appeal from an order of the superior court of San Francisco refusing to set aside a sale of property made by the sheriff under an order of sale issued out of said court upon a judgment rendered therein for the foreclosure of a mortgage in favor of the plaintiff. The sale was made June 8, 1896. Notice of the motion to set aside the sale was made October 19th, and heard November 19th, and was denied December 1st.

1. One of the grounds of the motion is that several parcels of the land were sold en masse instead of separately. The judgment embraced ten parcels of land, which were separately described and ordered to be sold in satisfaction of the plaintiff’s claim. The defendant was present at the sale, but gave no-directions respecting it, or the order in which the parcels should be sold. The sheriff offered each of the parcels separately, and bids were severally made for two of them, but were withdrawn by the bidders before a sale was effected. One of the parcels was sold for seven hundred and fifty dollars to Mrs. Dillon. After the sheriff had offered each of the parcels without ob[341]taining any purchaser for them, except in the case of the one sold to Mrs. Dillon, he offered the remaining nine parcels in a lump, and they were sold to the plaintiff for $11,954.

In thus malting the sale the sheriff followed the rule approved in Marston v. White, 91 Cal. 37, and no facts are presented herein which take the present case out of that rule. One of the grounds urged by the appellant for setting aside the sale is that the property was sold for much less than its actual value, but the only evidence presented to the superior court in support of this proposition was the fact that two years prior to the sale the lands had been appraised at the sum of $38,135 by appraisers appointed therefor by the probate department of the court in the administration of the estate of the mortgagor. It was also shown that the lands had been assessed by the city and county assessor for the year 1894 at $13,870, and for the year 1895 at $13,490. hfo attempt was made to show their value in the year 1896, or at the time of the sale, and, as they were sold for $13,704, the court was not required, under the evidence before it, to hold that this amount was so inadequate to their value as to authorize it to set aside the sale.

Meither did the refusal of the plaintiff, after the sale, to fix a sum at which it would allow a redemption of either of the parcels bought afford a reason for setting aside the sale. The right of redemption is purely statutory, and unless the defendant brought himself within the statute he could not claim the right to redeem. The purchaser of land at a sheriff’s sale acquires a right in the land which can be divested only in the mode and to the extent provided by the statute. The object of the statute in requiring a sale to be by parcels is to afford the judgment debtor an opportunity to redeem either of the parcels, but the mortgagee has a right to have the land sold in satisfaction of his claim, and if it cannot be effected in parcels the sheriff is authorized to sell it as a whole, unless otherwise directed by the judgment debtor. Any redemption from the sale must be of the land sold, and according to the parcels in which it was sold. It must be assumed from the fact that the sheriff was unable to sell the several parcels, and could only sell them as a whole, that the lands were more valuable taken together than separately.