
    Anna E. I. VON HEMERT v. OSCAR L. TAYLOR and Others.
    May 25, 1899.
    Nos. 11,552—(78).
    Error not Presumed.
    Error cannot be presumed, but must be made to appear affirmatiyely.
    Foreclosure of Mortgage — Order for Sale as One Tract.
    It does not affirmatiyely appear that the mortgaged premises constitute more than one separate and distinct tract or parcel. Therefore it does not appear that the court erred in ordering the whole, or so much thereof as may be sufficient to satisfy the mortgage debt, sold on foreclosure sale as one tract or parcel.
    Action in the district court for Bamsey county to foreclose- a mortgage for $40,000 executed by Oscar L. Taylor and Nora W. Taylor, his wife. From a judgment in favor of plaintiff, entered pursuant to the findings and order of Kelly, J., defendant mortgagors appealed.
    Affirmed.
    
      John F. Fitspatriclc, for appellants.
    
      Harvey Officer, for respondent.
   OANTY, J.

This is an action to foreclose a mortgage. The mortgaged premises are described as the “south 100 feet of lots numbered 12 and 13, in block numbered 11, of St. Paul Proper.” The judgment of foreclosure orders that

“The mortgaged premises, * * or so mueh thereof as may be sufficient to satisfy the amount due to the plaintiff, which may be sold without material injury to the parties interested, be sold in one tract or parcel, at public auction,” etc.

The defendants Oscar L. and Nora W. Taylor appeal from the judgment, and urge as ground of error that it does not affirmatively appear that all of the mortgaged premises constitute but one tract or parcel, and that, therefore, the judgment ordering them sold as •one tract or parcel is erroneous. It is well settled that error cannot be presumed, but must be made affirmatively to appear. The fact that parts of the premises are rented to different tenants, whose rights are subordinate to the rights of the mortgagee, and that the south half of said lot 13 is subject to a party-wall contract, does not show that the mortgaged premises consist of separate and distinct tracts or parcels.

Judgment affirmed.  