Baird v. Sax Auto Co. , 70 N.D. 53 ( 1940 )

I am unable to agree with the opinion of the majority. It is based upon the premise that the foreclosure sale is only voidable. In my opinion the sale is a complete nullity and none of the parties acquired any rights thereunder.

The mortgage that was foreclosed described Lots 10 and 11. The value of the premises consists chiefly of a building that is located on both lots. Lot 12 adjacent to Lot 11 is vacant. The judgment and decree in the foreclosure action and the special execution issued pursuant thereto properly described Lots 10 and 11 and directed the sheriff to offer them separately and if no bids were received to offer them for sale as an entirety.

All the steps taken by the sheriff were erroneous and did not comply with the directions contained in the execution. Instead of advertising and selling Lots 10 and 11 as directed, he advertised and sold Lots 11 and 12. Lot 12 was not covered by the mortgage, and was not the property of the mortgagors. The sheriff did not offer Lots 11 and 12 separately, but offered them as one tract. The only bid he received was for them as one tract, which the sheriff accepted. He made a report of sale to the court and the court erroneously confirmed the sale. The sheriff thus sold as one tract, two lots, one of which was not covered by the mortgage.

There is no question but that the sale is entirely void and of no effect as to Lot 12. The sale cannot be half good and half bad. It constitutes one indivisible official act, and since it is void as to Lot 12 it is void as to the entire tract that was sold as a unit, upon one bid and for one price.

The defect was not cured by the confirmation of the sale. The court had no jurisdiction over Lot 12 and could neither order the sale of that lot nor confirm the sale that was made. It follows that it could not confirm half of the sale since the two lots were sold as a whole. The whole sale being void, confirmation could not make it valid. Jenkins Land Live Stock Co. v. Atwood,80 Neb. 806, 115 N.W. 305.

"But the curative powers of orders of confirmation extend to voidable, rather than to void sales. If a sale be void because the court did not have jurisdiction to order it, or because it included property not described in the decree or order of sale, an order confirming it is necessarily inoperative. `The sale being void, there was no subject matter upon which the order of confirmation could act.'" Freeman, Void Judicial Sales, 3d ed. § 44.

The plaintiff has a good decree for the foreclosure of the mortgage, but all proceedings subsequent to the entry of that decree are void. He has acquired no rights in the property which entitle him to recover against the defendant for rents or for the value of use and occupation of the premises.