172 N.W. 804 | S.D. | 1919
The sheriff of Pennington county sold a quantity of land, under an execution issued on a decree of foreclosure of a mortgage. The land consisted of four separate tracts, or parcels, but was sold in a mass as a single tract. Plaintiff brought this action, within the period of redemption, for the purpose of having the sale set aside. Section 369, Code of Civil Procedure (section 2676, Code. 1919), provides that separate tracts, or parcels, of land must be sold separately. This provision of law was enacted for the benefit of judgment debtors whose property has been sold on execution, in order that they may redeem one or more of the separate tracts, if they so desire, without being compelled to redeem them all. A debtor may be able to redeem one
The sheriff who made the sale testified that the mortgaged: land was in four distinct tracts. The trial court found that the land sold' for about its reasonable value, and that plaintiff was not able, financially, to have purchased the property if it had been sold in separate tracts. But these facts are wholly immaterial. The court further found that he was not able to, and did not intend to, redem any part of the land. This is a violent presumption, to say. the least, when the plaintiff is in court asking to have the land sold in tracts for the very purpose- of permitting him to redeem one or more of them.
The sale shoukl.be set. aside and a new sale ordered. The judgment appealed from is reversed.