The material question in this case is, whether the sale by the sheriff of these ten lots in one parcel was void, or only voidable at the instance of a party aggrieved by the illegality. It was clearly the duty of the sheriff to sell the lots separately (2 R.S. 369, § 38); but the counsel for Williams *Page 278 maintains that a title passed by the sheriff's deed, though the direction of the statute was disregarded.
There is a well known distinction between statutory provisions which are of the essence of the proceedings to which they relate, and without the observance of which everything which is done is nugatory, and such as are merely modal or directory and the violation of which does not necessarily draw after it the effect of avoiding what has been legally done.
After some reflection, and contrary to the opinion which I had formed on the argument, I am prepared to class the direction to sell land on execution in parcels, where it consists of distinct lots or tracts, as falling within the last mentioned class. A judgment is a general lien upon all the land owned by the debtor at the time it was docketed.
It is the recovery of the judgment which affects the owner's title, by charging it with the burden of the debt; and the subsequent proceedings relate to the method in which the lien is enforced and executed. A departure from the prescriptions of the statute in conducting these proceedings may, or may not, prejudice the debtor or his other creditors.
Cases may be supposed, of several parcels of land bound by a judgment and subject also to a prior lien, where a sale in gross under the judgment would be more beneficial, to all the parties concerned, than one in detail. Then it is only where the land offered for sale consists of several known lots, tracts or parcels, that the provision applies.
This is a term susceptible of degrees of comparison, and although in a given case, and perhaps in this case, the division into lots would be sufficiently notorious, yet cases may often occur in which, although there had been such a division of the premises by ideal lines, a question would arise whether the fact was so well known that the sheriff, or the parties attending as bidders, would be bound to recognize the division.
It would be an inconvenient rule which should make the validity of the sale depend upon a difficult question of fact. It would, I think, be a safer rule, to hold that the power exists to sell premises so *Page 279 divided together, and that the title passes by a conveyance made pursuant to such a sale.
A party in interest, applying within a reasonable time, would have right to set such a sale aside; but that he may waive by an express act of ratification, or by a neglect to assert his rights by a seasonable application to the court. It was repeatedly held, before the adoption of the Revised Statutes, that sales of several lots or farms in a single parcel was oppressive and wrong; but it was considered that a title passed, and that the party aggrieved was obliged to apply to have the sale set aside.
(Jackson v. Newton, 18 John., 362;Tiernan v. Wilson, 6 John. Ch.
R., 411; Ryerson v.Nicholson, 2 Yeates, 517.) The provision in question, like many other portions of the Revised Statutes, was apparently in affirmance of the law as it had been laid down by judicial decisions; and it is reasonable to suppose that if the legislature had thought it expedient to annex a consequence, to a violation by the sheriff of his duty in this respect, beyond what had been visited upon the purchaser by the course of decision upon the subject, it would have been done by positive language.
The question as to the regularity of the sale upon the judgment of foreclosure was not before the general term upon the appeal from the order of the special term. The order therefore setting aside the sale of lot No. 21 was erroneous.
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