Langsdale v. Mills

Erazer, C. J. This was a motion by Mills to set aside a sheriff’s sale of real estate to Langsdale. The facts were, that Gay had brought a suit to foreclose a mortgage on lauds, made by one Bond to Langsdale, to secure four promissory notes, one of which had been paid. The second note maturing, for five thousand six hundred dollars, was held by Gay, and the remaining two, each for a like sum, were still held by Langsdale, and were not due when judgment was rendered in the cause. Langsdale had filed a cross complaint, also seeking a foreclosure as to the notes held by him. Mills had purchased a part of the lands, subject to the mortgage. There was a final judgment for Gay for four thousand one hundred and thirty-six dollars and forty-three cents, and a decree for the sale, in parcels, of the mortgaged premises, to satisfy the same; and that “ if the proceeds of the sale of any such part or parts of said [381] real estate shall prove sufficient to satisfy said judgment and accruing costs, then the further sale shall he suspended until August 23d, 1868, when Langsdale’s first note becomes due, when said sale shall be resumed to pay that noteand it was directed that, upon selling sufficient lands to do so, there should be another suspension of sale until August 23d, 1869, when the remaining note held by Langsdale would mature, &c. Langsdale replevied the judgment thus rendered in favor of Gay, and thereupon the sheriff proceeded to sell the lands, to satisfy Langsdale’s note due August 23d, 1868, that day having now passed, upon a copy of the decree issued to him on the 24th of August, and Langsdale purchased three parcels of-the land, including Mills’ purchase, for thirteen thousand five hundred and forty-seven dollars and eighty cents, being the amount of his two notes (one not yet due) and costs. The sale was made on the 19th of September, 1868. The motion was sustained, and the sale set aside. Langsdale appeals. L. Barbour, G. P. Jacobs, B. K. Elliott, and C. A. Holstein, for appellant. II. G. Newcomb, J. L. Mitchell, and TP. L. Ketcham, for appellee. We think that the action of the court below was correct As we understand the decree of foreclosure, there could, under it, be no sale to satisfy the notes held by Langsdale until after Gay’s judgment was satisfied. The question is not what that decree ought to have been, but what it is. While it remains in its present form, any sale made under it, not authorized by its terms, cannot stand. Affirmed, with costs.