Marks v. Taylor

BASKIN, J. At a previous term we affirmed tbe judgment of tbe lower court in tbis case. Tbe opinion tben delivered is reported in 63 Pac. 897. Tbe appellants made a motion for a rebearing, wbieb was granted. Tbe facts are fully stated in tbe former opinion. :Tbe facts pertinent to tbe present bearing are as follows: A mortgage executed by appellants to tbe respondent to secure a promissory note was foreclosed in tbe court below, and at tbe sale of tbe real property described in tbe mortgage tbe respondent purchased tbe same, and after tbe expiration of tbe time for redemption tbe sheriff executed to her a deed. Some time' afterwards she discovered that a valuable part of the real estate which it was intended tbe mortgage should include was, by tbe inadvertence and mistake of tbe party who drew tbe same, not.included in tbe description of tbe mortgage as executed. Tbe description of tbe property, both in the decree of foreclosure and tbe sheriff’s deed, was tbe same as tbe description in tbe mortgage. Tbe present action was instituted in the court below to reform the mortgage, decree, and sheriff’s deed, so as to include that portion of tbe real estate so erroneously omitted, and upon tbe bearing that rebef was granted. Tbe provisions of tbe statute, in relation to sales of real property under decrees of foreclosure, require tbe notice of sale to particularly describe tbe premises ordered to be sold. In said foreclosure proceedings tbe property ordered to be sold was described by metes and bounds, courses and distances, tbe same as it was described in tbe mortgage as executed, and as in tbe sheriff’s deed; and, while tbe notice of sale is not con [472] tained in the record, in the absence of any showing to the contrary the presumption is that it described the property to be sold as the same was described in the decree of foreclosure. So that it appears that the premises mentioned in the decree, advertised for sale, purchased by and deeded to the said Anna Marks, the respondent, are not the same as the premises described in the mortgage as reformed by the decree of the lower court. The decree of the lower court, if affirmed by this court, would invest the respondent with the title to property which was neither ordered to be sold, advertised, or offered for sale, or sold by the sheriff to her. It is true that she thought that the property intended to be mortgaged was the property offered for sale, and evidently bid in the property with that understanding, but it does not appear that other bidders, if any others were present at the sale, had the same understanding. If the property included in the reformed mortgage had been advertised for sale, it is not improbable that a higher bid than the respondent’s would have been made by some other person. All judicial sales of real property must, under the provisions of section 3254, Revised Statutes, “be made at the court house of the county in which the property, or some part thereof, is situated,” and not upon the premises. It does not appear in this case, as in the cases of Quivey v. Baker, 37 Cal. 465, and Waldron v. Letson, 15 N. J. Eq. 127, cited by us in the former opinion, that the sheriff, in making the sale, pointed out to the bidders or persons present the property which he was about to sell. In the former case, the court in its opinion said: “In the decree of foreclosure and order of sale there was the same erroneous description; but in making the sale the sheriff pointed out to the bidders the property in contest as that which he was about to sell, being ignorant of the mistake in the description.” In the latter case the chancellor in the opinion said: “The complainant claims to be protected in the posses [473] sion and enjoyment of tbe premises for wbicb be bid at tbe sheriff’s sale, and for wbicb be paid tbe purchase money. They are tbe same premises wbicb it was understood and believed, by persons present at tbe sale, were being sold. I proceed upon tbe assumption, wbicb is fully justified by tbe evidence, that it was understood, not only by tbe purchaser, but by tbe bidders and persons generally at tbe sale, that tbe entire lot was being sold, and that tbe price for wbicb it was struck off was tbe price for which tbe entire would have sold.” Upon a careful review, We are satisfied that that part of tbe decree wbicb reforms tbe decree of foreclosure and tbe sheriff’s deed is erroneous, and that following that portion of tbe former which reforms tbe mortgage a decree foreclosing tbe mortgage as reformed should have been made, instead of tbe decree reforming tbe decree of foreclosure of tbe mortgage as executed and tbe sheriff’s deed. Conyers v. Mericles, 75 Ind. 443-448. As tbe complaint contains a prayer for general relief, tbe decree should be modified by ordering the property covered by the reformed mortgage to be sold in accordance with tbe provisions of tbe statute in such case made and provided, and tbe proceeds of tbe sale, or so much thereof as may be necessary, after paying tbe legitimate costs, to be appropriated in satisfaction of tbe ^amount secured by the^mortgage liens on said property set out "in tbe complaint of plaintiff, wbicb the court below shall find to be due and owing to her by tbe defendant Thomas E. Taylor on bis promissory note, and if, after paying the costs and satisfying said lien, any balance should remain, that it be paid to the defendants. It is ordered that tbe case be remanded, with instructions to tbe court below to modify tbe decree in accordance with tbe foregoing opinion, and that, as only a portion of tbe decree is erroneous, each party pay their own costs. Bartch, J., and'Morse, District Judge, concur.