Marston v. White , 91 Cal. 37 ( 1891 )

Belcher, C.

This is an appeal from an order refusing to set aside a sale of real property under a decree of foreclosure of mortgages upon t ,e property.

It appears from the bill of exceptions that the property described in the mortgages and decree of foreclosure consisted of two parcels of land, known as lot D and lot I in block G of Horton’s Addition to the city of San Diego. The decree was duly rendered on the twelfth day of October, 1889, and thereafter, on the third day of March, 1890, when the sheriff of San Diego County, after due notice, was about to sell the property under an order of sale issued in pursuance of the decree, the appellant directed the sheriff, both orally and in writing, to sell the lots separately, and as to the order in which they should be sold. The sheriff offered the lots for sale separately as directed, but received no bids for either of them, and he then offered them as a whole, and they were struck off and sold to the respondent, who was the highest bidder and one of the mortgagees. A return to this effect was made on the writ, and a certificate of sale given to the purchaser.

On the 14th of Avgust, 1890, the appellant served upon the respondent her affidavit and notice of motion to set aside the sale, upon the ground that the lots were not sold separately, as required by section 694 of the Code of Civil Procedure and as directed by her.

When this motion came on to be heard, the appellant introduced in evidence her notice of motion and affidavit in support thereof, a copy of the notice served on the sheriff prior to the sale, the order of sale and the sheriff’s return thereon, and then rested. After argument by counsel for the respective parties, the court denied the motion, and the appellant excepted to the ruling.

Section 694 of the Code of Civil Procedure provides that “ when the sale is of real property, consisting of several known lots or parcels, they must be sold separately; or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion must be thus sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when, such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the sheriff must follow such directions.”

It has been held that this section is applicable to sales under a decree of foreclosure, when the decree is silent as to the manner or order in which the separate parcels shall be sold. (Ontario Land & Imp. Co. v. Bedford, 90 Cal. 181.) It does not, however, render a sale of separate parcels en masse, in disregard of its requirements, absolutely void. Such a sale is voidable, and on timely application will ordinarily be set aside. (San Francisco v. Pixley, 21 Cal. 57; Blood v. Light, 38 Cal. 654; 99 Am. Dec. 441; Browne v. Ferrea, 51 Cal. 552; Vigoureux v. Murphy, 54 Cal. 346.)

But while the rule declared by the code as above is controlling and should be strictly followed, still, it cannot be held to apply where each distinct parcel is first offered for sale separately and no bids are received. In such case, the property may then be offered and sold as a whole, and the sale will be upheld, unless other reasons appear for setting it aside. The rule applicable to such cases is stated, and as we think correctly, in Freeman on Executions, section 296, as follows: “ The rule that distinct parcels should be separately sold is not generally enforced to the extent of denying the right to sell when the sale can be made in no other way. Hence the officer, after offering the parcels separately and in various combinations, without receiving Jany bids, may then offer and sell them en masse.” And see authorities cited.

Here the lots were offered separately, as directed by the appellant, and the only ground urged for setting aside the sale was, that they were then sold together. This, as we have seen, was not a valid ground, and hence it follows that the order appealed from was proper, and should be affirmed.

Vanclief, C., and Fitzgerald, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the order appealed from is affirmed.