Bechstein v. . Schultz

Browit, J. The plaintiff purchased the. property which he agreed to convey to the defendant, at a forclosure sale. The case states that the property was advertised-by the referee to be sold on August 13, 1884, that said sale was adjourned to August nineteenth, and from that date to September second, and from that date to September fourth, when the sale took place. That the notice of postponement of the sale from August nineteenth to September second, was not published until September fourth, when all the adjournments were published in the newspaper where the original notice of sale was required to be and was published. That after the sale the referee filed his report of sale and said report was duly served upon the respective attorneys of all the parties defendants in said foreclosure action; that no exceptions were filed to said report and the same was by order in all things confirmed by the Supreme Court, and said order of confirmation was thereafter served upon said attorneys respectively and that said order has not been appealed from, vacated or modified. The defect in the title is claimed to arise from the failure to publish the notice of the adjournment of the sale until after September second, one of the dates to which it was adjourned. *170 Section 1678 of the Code of Civil Procedure provides among-other things that notice of postponement of the sale must be-published in the paper or papers where the- notice, of sale was. published. We think the objection made is not available to the-defendant. The court had jurisdiction over' the subject-matter of the controversy between the parties to the foreclosure action, and it is not claimed that the judgment in that action was not in-all respects valid and regular. The omission to publish the notice- of the- adjourned sale was an irregularity merely, which might have afforded good ground for vacating and setting aside the sale made, but one. which the parties were competent to waive, and which from the subsequent proceedings we must assume they did waive. The referee’s report of sale appears to have been duly served upon all parties to the action, and upon due notice the sale-was ratified and confirmed by the court, and with the order then entered no complaint has been made.. The sale was not void and none of the parties in interest having made any complaint, the objection is not available now to impeach the title of the property. The judgment should be affirmed, with costs. All concur. Judgment affirmed.