
    John Stites et al. v. Louisa Wiedner et al.
    1. The title of a purchaser at a judicial sale, as a general rule, can not be impeached, in equity, for errors or irregularities in the proceedings; but where a tract of land not in fact sold, and for which no consideration was paid or intended to be paid, is, by mistake, included in the report of sales, such mistake may be corrected, in equity, as against the pur- ’ chaser or his heirs even after confirmation and deed in pursuance thereof.'
    2. Parol evidence may be admitted to prove such mistake.
    Error to the District Court of Hamilton county.
    The original action was brought by plaintiffs in error against defendants in error, in ’ the Court of Common Pleas of Hamilton county, to quiet their title and possession to lot number two of a certain plat and subdivision of a tract of land known as the Turkey Bottom farm. At the hearing in the common pleas a decree was rendered in favor of the plaintiffs; but, on appeal to the district court, the petition of the plaintiffs was dismissed. A motion for a new trial was made and overruled, to which the plaintiffs excepted, whereupon a bill of exceptions was taken setting out all the testimony. It is now assigned for error that the finding of the district court was contrary to the evidence.
    The testimony very clearly establishes the following state of facts: Nathaniel W. Stites, being the owner in fee of lots numbers one and two in said subdivision — the last-named lot, number two, being subject to the life estate of one Ann "W. Thompson, executed a mortgage to one Perris upon.said lot number one, “containing 26.21 acres,” and also upon “ all his interest, present and prospective, in lot two of said plat and partition.” Lot two contained 29 acres and a fraction of an acre.
    Iu a proceeding to foreclose this mortgage (and two others upon lot number one) the premises were described in the petition as above set forth. A sale was decreed of “the premises in the petition described.” The order of sale issued to the sheriff* described the property as it was in the petition. Under this order an appraisement was returned, “ that the premises above described, upon actual view thereof, are of the value of $135 per acre.”
    In reporting the sale, the return was as follows: “Agreeably to the command of the within order, I have appraised and advertised the within described lot or parcel of land, . . . and sold to Prancis Portman the following described real estate (describing the same as in the petition), “ for the sum of $165 per acre. . . . Amount of sale, $4,324.65.” This amount was paid, and no more. Sale was confirmed and deed executed, describing the property as in the petition and order of sale. The defendants claim title to lot number two under this proceeding, as the heirs of the purchaser, Práncis Portman. The plaintiffs, the life estate of Thompson having terminated, entered into possession of lot two, and seek to be quited in their title as heirs of Stites, the mortgagor.
    On the trial in the district court, the plaintiffs proved, under objection by the defendants, that the appraisement of $135 per acre was of lot number one alone, and that the interest of Stites in lot number two was not considered by the appraisers, and also, that at the sale by the sheriff lot number one was offered for sale, without reference to the interest of Stites in lot number two, and was sold for $165.
    
      Harmon Harrell, for plaintiff in error:
    Equity may relieve against a mistake in a sheriff’s deed as well as any other. Crosby’s Heirs v. Wickliffe, 12 B. Mon. 202; Walford v. Phelps, 2 J. J. Marsh, 31.
    The actual proceedings of the sheriff may be shown by parol, to rebut the recitals of his deed. Lessee of Longworth v. U. S. Bank, 6 Ohio, 536.
    Error certainly will not lie against a sheriff’s deed, and it is that alone that we complain of; that alone passed the title. The only remedy is by a direct proceeding in equity to avoid or correct it, as the case may be.
    . We claim, in short, that if the sheriff, by inadvertence or mistake, included lot number two in his deed to Eortman, when it was not sold, that mistake entitles plaintiffs to relief in equity. If he included it intentionally, the act being void because without consideration or authority, plaintiffs are entitled to relief, because they are in possession, and the deed puts a cloud upon their title.
    Plaintiffs are seeking equity. Defendants are seeking to get something for nothing.
    
      Joseph MoDougal, for defendants in error.
   McIlvaine, C. J.

If the testimony, admitted by the court below, was properly before the court, there can be no doubt that the finding by the district court upon which the petition was dismissed was contrary to the evidence. The controlling question therefore is, was it competent to show by parol testimony that lot number two was not appraised or offered for sale in the proceeding to foreclose set forth in the record? But before looking into the parol proof, how does the record evidence stand? That the property was appraised and sold by the acre is clear. The successful bid was $165 per acre; the gross sum paid was $4,324.65 ; the number of acres in lot one was 26.21, which, multiplied by $165, give the exact product of $4,324.65. It' follows from this calculation that if lot two, separated from lot one by a street and containing 29.25 acres, was also sold, there was not any thing paid for it. That lot two was not appurtenant to lot one is clear, and that the value, of the niortgagor’s iiiterest therein was included in the appraised value of lot one, or in the bid of $165 per acre, for which lot one was sold, is not affirmed by any thing appearing in the record, and that it would have been irregular to have so included it, leads us fairly to the conclusion that neither the sheriff who sold, nor the purchaser under whom the defendants claim, could have intended or understood that lot two was embraced in the sale. Purther than this, the sheriff'reports that he had appraised and advertised “the within described lot or parcel of land” — “containing 26.21 acres.” True, he adds to the report of the sale of lot one, “ also all his (Stites) interest, present and prospective, in lot two of said plat or subdivision.” Thkt this addition was made by mistake is scarcely susceptible of a doubt from the face of the record, and is made entirely clear by the parol testimony, that lot two, or any interest therein, was not appraised, and that in point of fact lot one and that only was offered for sale and struck off at $165 per acre.

We can see no objection to the admission of parol testimony to prove such mistake. And it being shown that lot number two was not sold, nor was any consideration paid or intended to be paid therefor, the subsequent confirmation of the report and deed in pursuance thereof were not effectual in equity to pass an indefeasible title to the grantee.

Of course, this decision is not intended to depart from the well-established doctrine that the title of a purchaser at a judicial sale who has paid a consideration for his purchase can not be attacked collaterally for irregularities.

Judgment of district court reversed, and decree for plaintiffs.  