Hudepohl v. Liberty Hill Water & Mining Co.

Paterson, J. This is an action to set aside an exetion sale, on the ground that the property, consisting of several disconnected parcels of land, was sold en masse. The court below sustained a demurrer to the complaint, and we think its action was right. The plaintiff’s right to maintain the action rests upon his claim to be a redemptioner by virtue of a judgment rendered in his favor against the defendant corporation in the superior court of San Francisco, of which a transcript of the docket was filed in the county recorder’s office in Nevada County, on March 28, 1887. The property had, however, been sold by the sheriff of Nevada County, October 9, 1886, upon a judgment against the same defendant in favor of one Todd, and the defendant Marshall, who also held a judgment lien against the [591] same property, had redeemed the property from the sale on the 13th of October, 1886. 1. The complaint shows that Marshall, the redemption er who redeemed the property from the purchaser, sold and conveyed all his rights, including the right to a deed from the sheriff to defendant Anna E. Smith, before plaintiff’s judgment became a lien on the property, and it is not alleged that she (Smith) had notice of any irregularity in the sale. “Innocent vendees of the original purchaser will always be protected, whether proceeded against by bill or motion.” (Freeman on Executions, 2d ed., sec. 296; Mixer v. Sibley, 53 Ill. 61; Nelson v. Bunnenburg, 81 Ind. 199.) The doctrine of the Indiana case cited by appellant, Piel v. Brayer, has been expressly repudiated in that state. (Jones v. Kokomo Bldg. Ass’n, 77 Ind. 344.) 2. It is not alleged that the proceeds of the sale were less than they wuuld have been if the land had been sold in separate parcels. Unless it is made apparent to the court that a larger sum would have been realized from the sale if the property had been sold in parcels, or that the sale of less than the whole tract would have brought sufficient to satisfy the writ, the sale will not be set aside. The question is, not what would the property bring if sold now or in the future, but whether the proceeds would have been materially increased, or the execution satisfied, by a sale of less than the whole, if the land had been offered and sold in parcels. 3. It is not sufficient to allege merely that several separate tracts were sold in the lump by the sheriff. (Riddell v. Harrell, 71 Cal. 262.) Such sales are voidable, not void; and one who seeks to have a sale en masse set aside should show that none of the conditions which would authorize the sale of all the parcels together existed at the time of the sale. There was no lien on the property, except that of the judgment creditor, at the time of the sale. The sale may have been made in solido by express direction of the judgment debtor; or it may have been offered in parcels and no bids received. The [592] judgment debtor may by parol waive a sale of the land in parcels, and give authority to sell in mass. (Smith v. Randall, 6 Cal. 52; San Francisco v. Pixley, 21 Cal. 59; Smith v. Meldren, 107 Pa. St. 348.) The judgment is affirmed. Garoutte, J., and Harrison, J., concurred.