Dickert v. Weise

Foreman, J., delivered the opinion of the court: This is an action on note and mortgage for foreclosure; plaintiff alleging possession in the defendant at the giving of the mortgage. Appellant (defendant below) answered, setting up that he bought the land of the plaintiff, paid for it in part, and after-wards gave the mortgage for the residue of the purchase money. That plaintiff had no valid title, but that his patent from the United States was procured by fraud; that the property was mineral land, and not subject to entry and patent as agricultural lands, and, therefore, the patent was void; and that, further, the United States had instituted suit to vacate the patent. The cause was submitted, to the court on the pleadings, and the court held that the answer did not raise any issue, and it accordingly gave judgment for the respondent. The property was sold and the judgment satisfied. The defendant has appealed to this court from the judgment and from the order overruling the motion to set aside the sale. We are asked to set the judgment aside because there were no findings in the court below either of facts or law. The complaint alleged possession in the appellant at the date of the mortgage, and this is not denied in the answer, nor is any ouster by paramount title alleged by appellant, nor does the answer show any tender of the possession even. The defendant (the appellant here) was not, therefore, in a condition to- take advantage of the facts set forth in the answer [354] and the answer raised no issue. Where a canse of action is submitted to the court upon the pleadings, and there is no issue raised by the answer, we do not deem that any findings are necessary; there are no reasons for any; the pleadings show the facts. Taylor v. Palmer, 31 Cal. 242. We see no reason to disturb the judgment. But it is urged that the sale was not properly conducted; that the property was not sold separately as required by statute, but was all sold together, and that the sale should, therefore, be set aside. The statute requires that when real estate is to be sold on execution, and is composed of several known lots, they shall be sold separately. In this case the parcels of property were offered separately by the officer, but there were no bidders. Thereupon the officer offered all of the property together, and it brought the whole amount of the judgment and costs. The object of the statute, no doubt, was to have the property sell for the highest possible price, and this view of the statute is borne out by the language of the section itself. C. L. § 1448. The object of the law was secured, and the action of the court below in overruling the motion to set aside the sale was proper. The judgment and ruling of the court below are affirmed, with costs. Sohaeí\feR, C. J., and EmersoN, J., concurred.