Hargin v. Raynor ( 1895 )

PER CURIAM.

Plaintiff is not in a situation to have the sale made by the sheriff set aside because the premises were not sold in parcels. Mrs. Baker and her attorney knew of the advertisement of the property, and of the sale by the sheriff, and made no objection at the time of the sale, or claim that it should be sold in parcels. Subsequently there was a redemption from the sale, and, when such redemption was made, Mrs. Baker and her attorney knew the premises had not been sold in parcels; and apparently the mortgage under which the redemption was made described the property in the same manner as the sheriff’s notice of sale. Section 1437 of the Code¹ is substantially like the provisions found in the Revised Statutes, and is directory. Plaintiff in this action is not entitled to have the sale set aside, after a conveyance thereof has been made to the defendant Raynor, because the sale did not take place in parcels. Bank v. Atwater, 2 Paige, 54; Cunningham v. Cassidy, 17 N. Y. 276; Wood v. Morehouse, 1 Lans. 405, affirmed 45 N. Y. 368. Nothing appears in this case to indicate that the judgment debtor was injured or prejudiced in any manner by the failure of the sheriff to sell the premises in question in parcels.

2. The referee before whom the cause was tried held and decided, upon the evidence, “that the defendant Wicks was not estopped by anything said or done, or which he omitted to say or do, from making the redemption which he made.” According to the evidence, the redemption was made by him in accordance with the usual rules and practices relating to redemptions, and the sheriff was therefore warranted in executing to him a deed of the premises; and he thus acquired title to the same, which he conveyed to the defendant Raynor. The referee has also found “that the said Andrews was not misled by any false or fraudulent statements of said Tracy or Wicks, or either of them.” Upon looking into the evidence we find that it is somewhat contradictory in respect to what transpired at the time of the interview between Wicks and Andrews; and applying to the evidence the rule that where there is a conflict, or where different -inferences or deductions are to be made, the findings of the referee are to be accepted, unless against the clear preponderance of the evidence, we are constrained to accept the findings of fact as stated in the decision made by the learned referee. The onus was very clearly upon the plaintiff to establish the essential facts upon which she predicated her right to relief. The referee has evidently failed to construe the evidence favorably to the plaintiff. After a patient study of the evidence, we are not inclined to overturn the deductions made by the referee from all the testimony offered before him. The foregoing views lead to an affirmance.

Judgment affirmed, with one bill of costs against the appellant.

1 Code Civ. Proc. § 1437, provides that, where real property ottered for sale by virtue of an execution consists of two or more known lots or parcels, each lot or parcel must he separately exposed for sale.