Wheatley v. Terry

[430] The opinion of the court delivered by Sanford, J.: This was a motion to set aside a sale of real estate and an order of confirmation thereof, on the ground that there had been no advertisement of the property sold, such as is required by law. It is shown that the party in whose interest the sale had been made, and the purchaser at the same, were before the court, and that they waived all objections to the form of the proceedings, and consented that the questions raised should be heard upon the said motion. The record also shows that the allegations of the motion as to want of proper advertisement were true as a matter of fact. The court refused the motion, though upon what ground, it does not appear, nor do we see any good ground for such refusal. Under the circumstances we are of the opinion that the motion should have been granted. It is unnecessary 'to decide whether or not this proceeding should have been by petition, and no opinion is expressed upon that point.. The order of the district court overruling the motion to set aside the sale and the order of confirmation, is reversed.. All the Justices concurring.