
    
      Felix Paquin vs. John B. Braley.
    P. mortgages to B. a forty acre tract and subsequently conveys to S. two and r half acres of said tract. B. afterward, and with full knowledge of the conveyance to S., forcloses the mortgage by advertisement, in pursuance of the power of sale contained in the mortgage, and sells the premises as one tract. Held — not to be error.
    In pursuance of the power of sale in a mortgage, B. (a mortgagee) advertised for sale the mortgaged premises, and the sheriff, acting as his agent, at the time and place fixed, offered said premises for sale, and B. bid them off for $500. After the sheriff had sold certain other lands, and in fifteen or twenty minutes after the first sale, he re-offered the premises first sold, and they were again bid off by B. for $542.26. Held — That the power of tho sheriff or B. to sell was exhausted by the first sale, and therefore the second sale was a nullity.
    This action was brought in the District Court of Rice County, to set aside certain mortgage foreclosure sales, &c. The cause was tried by a jury and a special verdict rendered therein. The facts as they appear in the pleadings, and as found by such verdiet are substantially as follows: In July, 1857, one Norbert Paquin was the owner of the s. w. quarter of s. w. quarter, sec. 29, T. 110, R. 20, (40 acres); also the s. e. quarter, see. 19, T. 110, R. 21, and s. e. quarter, sec. 23, T. 110, R. 22, in Rice county. In July 1857, he mortgaged the first described lands (40 acres,) to the defendant Braley for §2,000, and in October, 1857, the other lands to defendant for §400. In August, 1858, he conveyed 2-¿ acres of said forty acre tract to Brock and Sanford, and in March, 1859, conveyed his interest in the mortgaged premises to the plaintiff. Both of said mortgages were foreclosed by advertisement, and the premises struck off and sold to defendant on the 2lst September, 1859. At the sale the lands.mentioned in the second mortgage, (except 80 acres which had been previously released,) were first sold to the defendant for §500, and the lands mentioned in the first mortgage (40 acres,) were sold to the defendant as one parcel for §1,888.15. After said last mentioned sale, the premises first sold were re-offered for sale and sold a second time to the defendant for the sum of $542.26. The plaintiff was present at the sale, and demanded that the 40 acres should be sold in separate parcels. The defendant had notice of the conveyance of said 2acres to Breck and Sanford. The plaintiff also objected to said second sale. The jury found the value of the 40 acres at the time of the sale as follows, to-wit: 37-J- acres at §45 per acre, the 2-J-acres at §60 per acre, making in the aggregate, §1,692.50, and the value of the other lands, §2.50 per acre. Upon the special verdict the Court directed judgment to be entered for the defendant, refusing to set aside either of said sales. The plaintiff sues out a writ of error and removes the cause to this Court.
    Batcheldeb & Buckham for Plaintiff in Error.
    Berry & Perkins for Defendant in Error.
    
      
      This cause was argued and submitted before the election of Mr. Justice Berry.
    
   By the Court

Wilson, C. J.

— Norbert Paquin being the owner of the following described premises mortgaged to the defendant, (1), the s. w. quarter of s. w. quarter, sec. 29, T. 110, R. 20; (2), s. half of s. e. quarter, see. 19, and s. e. quarter of sec. 23.

Subsequently in August, 1858, he conveyed to J. Lloyd Breck and D. P. Sanford, 2^ acres lying in a square form in the n. e. corner of said s. w. quarter of s. w. quarter of sec. 29, and in March, 1859, he conveyed the whole of said mortgaged premises (except said 2-J acres,) to the plaintiff.

In August, 1859, the defendant in pursuance of the power of sale contained in said mortgages, advertised the premises for sale and in September, 1859, sold them as follows :

At the mortgagee’s sale the Sheriff who acted as the agent of defendant in making the sale, first offered the premises described in the second mortgage aforesaid, and the defendant bid them in for the sum.of $500, that being the highest sum bid therefor.

The Sheriff next offered as one lot or tract the premises described in the first mortgage, (s. w. quarter of s. w. quarter of sec. 29,) which the defendant also bid off — the Sheriff and defendant at the time of sale knowing that Breck and Sanford were the owners of 2-|- acres of the tract.

After this the Sheriff re-offered the premises first sold, and they were bid off by the defendant for the sum of $542.26. This sale was fifteen or twenty minutes after the first sale of the same premises.

On the facts two questions are presented to the Court: First, whether it was error in the defendant to offer and sell the premises described in the first mortgage as one tract or lot ?

Second, whether the Sheriff had any power to re-offer or resell the premises described in the second mortgage ?

As to the first question it will be observed that it is not whether Breck and Sanford or the plaintiff could in a court of equity have compelled the defendant to sell in the subdivision existing at the time of sale. Breck and Sanford here ask for no relief, and the plaintiff does not show that the course pursued was inequitable or prejudicial to his rights. It is simply a legal question whether the sale of said 40 acre tract in one parcel Avas in contravention of the statute and therefore void.

The Court are unanimously of the opinion that there was no error in the course pursued in the sale of that tract. The majority of Court consider that the mere sale to Breck and Sanford did not make said 2}¿ acres a “distinct tract or lof within the meaning of the statute. I think that where lands mortgaged as one tract or lot, are subsequently cut up into lots, the mortgagee upon a foreclosure of the moi’tgage under the statute is not bound to advertise or sell in parcels unless so ordered by a court of equity, and. on this ground I concur with my bx'ethren ixx the opinion that there was no error in the sale of this tract.

As to the second question presented we are clearly of the opinion that the poAver of the Sheriff (or defendant,) to sell was exhausted by ihojw'st sale.

The duties of the Sheriff in making the sale were merely ministerial. He had no right to disregard or power to set aside a prior sale. The second sale was thex’efore a nullity.

The cause is remanded to the. Court below with instnxctions to modify its judgment in accordance with this opinion.  