This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The rule which ordinarily obtains in connection with judicial sales, that a reversal of the decree for sale, unless for a jurisdictional defect, does not affect the rights of an innocent purchaser at the sale under the decree, who was not a party to the proceeding,99b applies in the case of a foreclosure sale under a mortgage. 99c
One having an interest in the land subject to the mortgage, if not made a party to the foreclosure proceeding, is not, it seems, concluded by the decree therein as an adjudication of the validity of the mortgage lien,99d nor as to the existence or amount of the debt.99e
504; King v. Longworth, 7 Ohio St. 2, 231; Peyton v. Ayres, 2 Md. Ch. 67; Olcott v. Bynum, 17 Wall. (U. S.) 44, 62, 21 L. Ed. 570; Black v. Reno, 59 Fed. 917.
99. Arnett v. Willoughby, 190 Ala. 530, 67 So. 426; Bank of Napa v. Godfrey, 77 Cal. 612. 20 Pac. 142; Kilmer v. Gallaher, 107 Iowa, 676, 78 N. W. 685; Skelton v. Ward, 51 Ind. 46; Wylie v. Mc-Makin, 2 Md. Ch 413; Brincker-hoff v. Thallheimer, 2 Johns Ch. 486.
99a. Carpenter v. Zarbuck, 74 Ark. 474, 86 S. W. 299; Reynolds v. Harris. 14 Cal. 667, 76 Am. Dec. 459; Bechtel v. Wier, 152 Cal. 443, 93 Pac. 75: Woolery v. Grayson, 110 Ind. 149, 10 N. E. 935; Rouskulp v. Kershner, 49 Md. 516;
Kopp v. Blessing, 121 Mo. 391, 25 S W. 757; Mayer v. Wick, 15 Ohio St. 548: Finley v. Houser, 21' Ore. 562. 30 Pac 494.
99b. 17 Am. & Eng. Enc. Law (2nd Ed.) 1017-1019; Kleber, Void Judicial Sales, Sec. 293.
99c. Phillips v. Benson, 82 Ala. 500. 2 So. 93; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Eraser v. Prather, 1 MacA. (D. C.) 206; Lambert v. Livingston, 131 111. 161. 23 N. E. 352; Gott v. Powell, 41 Mo. 416; Hubbell v. Broadwell's Adm'rs, 8 Ohio, 120; Adams v. Odom, 74 Tex. 206, 15 Am. St. Rep. 827, 12 S. W. 34; Armstrong v. Humphries, 5 S. C. 128. Contra. Woodard v. Bird. 105 Tenn. 671. 59 S. W. 143.
99d. Williams v. Terrell, 54 Ga.
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The decree is, however, prima facie conclusive as to the amount of the debt, and it is for him to show that this was arrived at by fraud or collusion,99f or that there were specific errors therein.99g the absence of a showing that a sale en masse was prejudicial to the party complaining.3 That the property is described in the mortgage instrument as a single tract of land,4 or is used as a single tract,5 is a consideration tending to justify the offer of it for sale as such. Whether the sale of the whole property is necessary to satisfy the debt,6 or such part of the debt as is due,7 and whether the property is readily susceptible of division for purposes of sale, so that selling it in parts in calculated to bring as high or a higher return,8 are weighty considerations in this connection. In several states there are statutory provisions in regard to the sale of the mortgaged property in parts or as a whole.9 The rule previously discussed,10 making parts of the mortgaged property liable for the mortgage debt in the "inverse order of alienation," should ordinarily be observed by the court in its decree for sale, by ordering the sale of the different parts in the order of their liability.11 And if a part only of the mortgaged property is subject to a junior mortgage, the court will ordinarily "marshal" the securities by requiring the other part to be first sold to satisfy the prior mortgage, in order to protect, so far as possible, the junior lien.12 On the other hand it may be proper, under the particular circumstances of the case, to order a sale of the entire mortgage premises in order to protect the interests of subsequent incumbrancers, although a sale of a part would bring enough to satisfy the mortgage sought to be foreclosed.13
Sale in parcels. It is within the province of the court to provide in the decree of foreclosure for the sale of the mortgaged property in separate parcels or en masse, as the best interests of the parties may require. But a decree ordering a sale en masse will not ordinarily be disturbed unless it is clearly shown that the court abused its discretion in this regard.1 And the fact that the person complaining of the sale failed to ask that it be made in separate parcels appears usually to be regarded as a reason for sustaining the sale en masse2 If the decree contains no direction as to the mode of sale, a discretion in this regard is lodged with the official making the sale, and his action in the premises will likewise not be interfered with in
462; Landigan v. Mayer, 32 Ore. 245, 67 Am. St. Rep. 521, 51 Pac 649; Clark v. Lesser, 106 Ark. 207, 153 S. W. 112.
99e. Damon v. Leque, 17 Wash. 573, 61 Am. St. Rep. 927, 50 Pac. 485; Renshaw v. Taylor, 7 Ore. 315.
99f. Needier v. Deeble, 1 Cas. in Ch. 299; Williams v. Day, 2 Cas. in Ch. 32; Knight v. Bamp-field, 1 Vern. 179. That he may question the decree in this regard only for fraud or collusion is asserted in Sumner v. Coleman, 20 Ind. 486; Roswell v. Simonton, 2 Ind. 516; Haines v. Beach, 3 Johns. Ch. (N. Y.) 158. Compare Hosford v. Johnson, 74 Ind. 479.
99g. Hall v. Heyward, 32 Ch. Div. 430, 435; Wrixon v. Vize, 2 Dru. & War. 192.
1. Homer v. Schonfeld, 84 Ala.
313, 4 So. 105; Howland v. Done-hoo, 141 Ga. 687, 82 S. E. 32; Kel-ley v. Canary, 129 Ind. 460, 29 N. E. 11; Geuda Springs Town & Water Co. v. Lombard, 57 Kan. 625, 47 Pac. 532; Macomb v. Pren-tis, 57 Mich. 225, 23 N. W. 788; Kane v. Jonasen, 55 Neb. 757, 76 N. W. 441; Guarantee Trust & Safe Deposit Co. v. Jenkins, 40 N J. Eq. 451, 2 Atl. 13; Miller v. Trudgeon, 16 Okla. 337, 8 Ann. Cas. 739, 86 Pac. 523.
2. Homer v. Schonfeld, 84 Ala. 313, 4 So. 105; Hopkins v. Wiard, 72 Cal. 259, 13 Pac. 687; Geuda Spring Town & Water Co. v. Lombard, 57 Kan. 625, 47 Pac. 532; McLaughlin v. Teasdale, 9 Daly (N. Y.) 23; Miller v. Trudgeon, 16 Okla. 337, 8 Ann. Cas. 739, 86 Pac. 523.