(after stating the facts). The reasons given in the bill of complaint, upon which complainant seeks relief, are these:
(1) The lands were sold for an amount in excess of the amount due on the mortgages..
(2) The sale is void* because the equity of redemption in the lands was divided, and sold as two parcels.
*559 (3) Because the second parcel was sold as one parcel, whereas it should have been sold in two, viz., the one-acre piece, and the balance excluding this acre.
(4) Because there was an agreement made at the time of the foreclosure sale between complainant and one Byan, who acted for Wyckoff in the foreclosure proceedings, that, if he (complainant) would make no contest or unnecessary expense, Wyckoff would bid the property in, sell it, retain the amount due him on the two mortgages, and pay the balance .to complainant.
1. Complainant testified that he did not receive the full amount of the two mortgages, and that, therefore, the amount alleged to be due was excessive. Upon this point, as well as upon the alleged agreement for the foreclosure proceedings, there is a direct conflict of testimony. We think the circuit judge reached the correct conclusion. The preponderance of evidence is with the defendant Wyckoff on both these points. A discussion of the testimony would be valueless.
2. The sale in two parcels was in strict compliance with the statute. Each was occupied as a separate farm, and complainant was possessed of the equity of redemption in each parcel. Under our statute, there was no indivisible equity of redemption on account of the prior mortgage. Our statute is explicit upon this point (2 How. Stat. § 8503), and requires distinct farms to be sold separately.
3. Complainant insists that the 20 days to pay the amount found to be due was unreasonable. The permission given by the decree to the complainant to redeem was an act of grace, and not of right. From that decree the defendants have not appealed. It follows that the complainant is not in a position to raise that question.
4. We see no force'in the contention that the one acre should have been excepted from the sale. If the act of the parties by the first mortgage, though the description was indefinite, had recognized this as two parcels, the second mortgage, which was being foreclosed, recognized them as one parcel; for that mortgage covered the entire description, and complainant gave a warranty of title. It appears that this one acre was not sold, but was leased.