But I do not perceive that the circumstances of this case are sufficient to warrant the application of the rule.

The plaintiff was present at the sale, and became a bidder. He requested the sheriff to sell the premises by lots, and not in one entire parcel; but he produced no map or other description of the ground as laid out in lots. In the deed of trust under which the plaintiff claimed title, and which had been executed to him by the defendant in the execution, about six months before, the ground was not designated by lots, but was described as a "certain lot, piece, or parcel of land, known and distinguished on a map, etc., as lot No. 34, and the easterly end of lot No. 38, containing three and a half acres, and bounded," etc. And when the plaintiff took possession of this "said tract of land," under his deed, he leased the same as one entire parcel to I. Hasbrouck; and so it appears to have been enjoyed at the time of the sale.

The sale is represented as having been made on the land. To bring the sheriff in default, or to charge him with an abuse of trust, the plaintiff, who was then in possession, and claimed the land, ought, at least, to have furnished the sheriff with clear and distinct proof of the division of the three acres into town lots, and of the size and description of these lots, and that the same was the act of the owner.33 So small a tract, and under the occupation of one 2 N. J. Eq. 182 (1839); Core v. Halsted, 2 N. J. Eq. 311 (1840); Penn v. Craig, 2 N. J. Eq. 495 (1841); Hicks & Hammond v. Perry, 7 Mo. 346 (1842); Day v. Graham, 6 Ill. (1 Gilm.) 435 (1844); Culberson v. Morgan, 29 N. Car. 387, 47 Am. Dec. 329 (1847); Sherry v. Nick, 1 Ind. (Smith 289) 575 (1849); Tate v. Carberry, 1 Phila. (Pa.) 133 (1850); Reed v. Diven, 7 Ind. 189 (1855); Tillman v. Jackson, 1 Minn. (Gil. 157)_183 (1854); Cunningham v. Cassidy, 17 N. Y. 276, 7 Abb. Pr. 183 (1858) Boyd v. Ellis, 11 Iowa 97 (1869); Klopp v. Whitmoyer, 43 Pa. St. 219 (1862); San Francisco v. Pixley, 21 Cal. 56 (1862); Catlett v. Gilbert, 23 Ind. 614 (1864); Bunker v. Rand, 19 Wis. 253, 88 Am. Dec. 684 (1865); Gregory v. Purdue, 32 Ind. 453 (1870); Tugwell v. Bussing, 48 How. Pr. (N. Y.) 89 (1874); Hay v. Baugh, 77 Ill. 500 (1875); Bell v. Taylor, 14 Kans. 277 (1875); Schilling v. Lintner, 43 N. J. Eq. 444, II Atl. 153 (1887); Grim v. Reinbold, 148 Pa. St. 446, 23 Atl. 1129 (1892); Power v. Larabee, 3 N. Dak. 502, 57 N. W. 789, 44 Am. St. 577 (1894); Hart v. Hines, 10 App. Cas. (D. C.) 366 (1897); Forbes v. Hall, 102 Ga. 47, 28 S. E. 915, 66 Am. St. 152 (1897); Holton v. Moody, 117 Mich. 321, 75 N. W. 762 (1898); Brock v. Berry, 132 Ala. 95, 31 So. 517, 90 Am. St. 896 (1901); Miller v. McAllister, 197 Ill. 72, 64 N. E. 254 (1902); Copper v. Iowa Trust &c. Bank, 149 Iowa 336, 128 N. W. 373 (1910); Sublett v. Gardner, 144 Ky. 190, 137 S. W. 864 (1911); Vangundy v. Hill, 262 Ill. 162, 104 N. E. 147 (1914); York v. Byars, 131 Tenn 38, 173 S. W. 435 (1915).

83In Lennon v. Heindel, 56 N. J. Eq. 8, 37 Atl. 147 (1897), on bill by the execution defendant to set aside a sheriff's sale of real estate it was urged that the property should have been sold in parcels. Pitney, V. C., said: "I think this ground fails for two reasons-first, I am not sure that it would have sold for more if it had been sold in parcels, though it is probable that it would; second, no serious request of the sheriff was made, no preparation or surveys or plots were made. The property was described in two parcels, but it was not suggested that it should have been sold in the parcels thus designated. And if the defendants in execution had wished the property sold in parcels they should have got up a scheme, maps and plots, and requested the sheriff to make sale in that way." In Iowa it is provided by the code that the defendant may deliver to the officer a plan of division of the land levied on, and if the officer unreasonably refuses to sell according to the plan the sale will be set aside. Taylor v. Trulock, 59 Iowa 558, 13 N. W. 661

tenant, will not, without other circumstances, raise the presumption of an abuse of power in the sale. One of the witnesses says that the premises, at the sale, were divided into five lots, by fences; but the other witness, who was also present at the sale, says he does not recollect any cross fences, and if they were then visible, the whole was still in the occupation of one tenant; those fences could not have been intended for the evidence of any division in pursuance of the map to which the witnesses refer, and which is made an exhibit in the cause; for by the map, the ground was divided into a great number of small lots; and it bears date within three months of the sale.

I see no sufficient ground, therefore, upon which this bill can be sustained; and it must, accordingly, be dismissed as to all the defendants, with costs.34

Decree accordingly.

(1882). See also Baker v. Chester Gas Co., 2 Del. Co. 269 (1873), affd. 73 Pa. St. 116; Wellshear v. Kelley, 69 Mo. 343 (1879); Feild v. Dortch, 34 Ark. 399 (1879); Howland v. Pettey, 15 R. I. 603, 10 Atl. 650 (1887).

As it is the duty of the officer to make an advantageous sale of the property he must necessarily be invested with some discretion in the manner of sale, and if he has honestly done so his judgment will usually be accepted. Nelson v. Bronnenburg, 81 Ind. 193 (1881); Stall v. Macalester, 9 Ohio 19 (1839); Balfour v. Burnett, 28 Ore. 72, 41 Pac. 1 (1895). A division may be clearly impractical, as in Craig v. Stevenson, 15 Nebr. 362, 18 N. W. 510 (1884), and Geney v. Maynard, 44 Mich. 578, 7 N. W. 173 (1880), where upon several lots a single building has been erected, Gleason v. Hill, 65 Cal. 17, 2 Pac. 413 (1884), where four ditches and the water rights connected therewith constituting one system were sold as one parcel. So where the officer receives no bids for the parcels, he may offer the property en masse. Slater v. Maxwell, 6 Wall. (U. S.) 268, 18 L. ed. 796 (1867); White v. Crow, 110 U. S. 183, 28 L. ed. 113 (1884); Nix v. Williams, 110 Ind. 234, 11 N. E. 36 (1886); Ollis v. Kirkpatrick, 3 Idaho 247 (Hasb.), 28 Pac. 435 (1891); Henderson v. Harness, 184 Ill. 520, 56 N. E. 786 (1900); Wilson v. Cory, 114 Iowa 208, 86 N. W. 289 (1901); Siler v. Lawson, 163 Ky. 6, 173 S. W. 158 (1915). Contra: Udell v. Kahn, 31 Mich. 195 (1875).)

Where property subject to a mortgage is taken on execution, since the equity of redemption can not be subdivided by separate sales of the various articles or tracts, the whole ought to be sold in one parcel. Tifft v. Barton, 4 Denio (N. Y.) 171 (1847); Webster v. Foster, 81 Mass. (15 Gray) 31 (1860); Carpenter v. Simmons, 28 How. Pr. (N. Y.) 12, 24 N. Y. Super. Ct. 360 (1863); Worthington v. Hanna, 23 Mich. 530 (1871); Harvey v. McAdams, 32 Mich. 472 (1875); Plimpton v. Goodell, 143 Mass. 365, 9 N. E. 791 (1887); Locke v. Shreck, 54 Nebr. 472, 74 N. W. 970 (1898); Knutson v. Rosenberger, 81 Nebr. 761, 116 N. W. 687, 129 Am. St. 711 (1908); Howland v. Donehoo, 141 Ga. 687, 82 S. E. 32 (1914). But in Rowley v. Brown, 1 Bin. (Pa.) 61 (1803), a lumping sale of three properties was disallowed although subject to an unapportioned ground rent. Compare Sargent v. Bedford, 6 W. N. C. Pa. 575 (1879), and see Baker v. Chester Gas Co., 73 Pa. St. 116, 2 Del. Co. 269 (1873); Excelsior Savings Fund v. Cochran, 10 Del. Co. (Pa.) 10 (1905); Cochran v. Goodell, 131 Mass. 464 (1881); North v. Dearborn, 146 Mass. 17, 15 N. E. 129 (1888).

By the weight of authority a sale en masse instead of in parcels is voidable but not void. Wheeler v. Train, 3 Pick. (Mass.) 255 (1825); Williams v. Allison, 33 Iowa 278 (1871); Lamberton v. Merchants' Nat. Bank, 24 Minn. 281 (1877); Boylan v. Kelly, 36 N. J. Eq. 331 (1882); Bennett v. Bagley, 22 Hun (N. Y.) 408 (1880); Reynolds v. Tenant, 51 Ark. 84, 9 S. W. 857 (1888); Lewis v. Whitten, 112 Mo. 318, 20 S. W. 617 (1892); Hudepohl v. Liberty Hill &c. Water Co., 94 Cal. 588, 29 Pac. 1025, 28 Am. St. 149 (1892); Grim v. Reinbold, 148 Pa. 446, 23 Atl. 1129 (1892); Hoffman v.

WORTH v. NEWLIN

COURT OF CHANCERY OF NEW JERSEY, 1896

36 Atlantic Reporter 30

GREY, V. C. This matter is presented upon exceptions filed against the confirmation of a foreclosure sale under section 45, p. 2111, Gen. Stat. 1895. The sale was made by the sheriff of Cape May county, on October 19, 1896, pursuant to the command of a writ of fieri facias issued upon decree made in this foreclosure suit for the sale of an hotel and lot of land, and also its furniture. The execution directed the sale of a lot of land at Cape May having an hotel upon it, and also of a lot of furniture, the equipment of the hotel, described in the proofs as "The Chalfonte." The execution did not specify whether the land should be sold separately from the personal property or not, nor did it direct a sale of either in parcels. It described the real estate and the personal property in the same terms by which they were described by the mortgagor in the complainant's mortgage.

The objection is that the real estate and personal property were sold together, and not separately.36 The property consisted of an hotel and its furniture and equipment. The exceptant is one of the mortgagors. In the mortgage which she made she described the lands mortgaged, and added this clause as to the personal property: "And also all the furniture, carpets, bedding, household goods, kitchen utensils, crockery, china, glass, wooden, silver, iron, and tin ware, and other household furnishing goods now in or which may hereafter be put in the hotel on the said premises." The mortgage was not executed as a chattel mortgage, as if the parties considered the furniture separately from the hotel, but as a real estate mortgage only, naming the furniture as if it were appurtenant to the hotel. There were no judgments entered or other liens upon the personal property. The complainant's mortgage was the only lien. upon this personal property. The furniture and utensils of the hotel were treated by the parties as if they considered them to be part of the hotel equipment. The writ directed a sale of the property mortgaged in the very words which the exceptant had herself used in describing it in the mortgage. The sheriff swears without contradiction "that no request was made to deponent (the sheriff) before or at the sale to sell said hotel and said furniture separately.' Buschman, 95 Mich. 538, 55 N. W. 458 (1893); Hargin v. Wicks, 92 Hun 155, 36 N. Y. S. 375, 71 N. Y. St. 145 (1895); Palmer v. Riddle, 180 Ill. 461, 54 N. E. 227 (1899); Dixon v. Dixon, 38 Misc. Rep. 652, 78 N. Y. S. 255 (1902); Bechtel v. Wier, 152 Cal. 443, 93 Pac. 75, 15 L. R. A. (N. S.) 549n (1907). Contra: Brien v. Robinson, 102 Tenn. 157, 52 S. W. 802 (1898), and see Forbes v. Hall, 102 Ga. 47, 28 S. E. 915, 66 Am. St. 152 (1897).

35 Part of the opinion is omitted.

36In Lee v. Fellowes & Co., 10 B. Mon. (Ky.) 117 (1849), a sale on execution of land and slaves in gross was held irregular. Accord: Cresson v. Stout, 17 Johns. (N. Y.) 116, 8 Am. Dec. 373 (1819).

I

THOMPSON V. M'MANAMA

751

The property had, at the last two sales made of it, been sold real and personal as an entirety. The weight of the evidence is that it is customary in Cape May to sell hotels with their furniture as an entirety. In view of these facts, and of the sheriff's opinion that the property would bring a better price when sold as a whole than when sold separately, I do not think the sheriff exceeded his power under the writ, nor that he used his discretionary authority harshly or oppressively, in selling the hotel and its equipment as an entirety. The hotel was located at a public seaside resort, and the persons who could have proved the value of the hotel and of the furniture, if it were desired to do so, were necessarily many. The sheriff testifies that in his opinion the hotel and furniture was "worth more, and would sell for more, if sold together as a whole, than if sold separately." I think it may well be claimed that a furnished hotel, mortgaged as such, would produce at a public sale a higher price if sold as an entirety than would result from a sale of the hotel at one bid, and its furniture separately, either as a whole or in parcels. Upon the whole matter, as submitted to me, I think the exceptant has failed to show sufficient cause to justify a refusal to confirm the sale. I shall therefore advise that an order be made confirming the sale.37

THOMPSON v. McMANAMA

SUPERIOR COURT OF CINCINNATI, 1858

2 Disn. (Ohio) 213

Special Term.-On motion to set aside a sheriff's sale. At the January term, A. D. 1858, the plaintiff obtained a decree of foreclosure and sale of certain leasehold premises in the city of Cincin

"In Bergin v. Hayward, 102 Mass. 414 (1869), it is said: "The law does not undertake to point out in what precise manner he (the officer) shall set up the property to be bidden upon. From the necessity of the case, much must be left to his reasonable and fair discretion. There may be cases in which it would be injudicious to sell articles singly, or in any other way than by the case, or the dozen, or perhaps even by the lot. He must act in good faith, so as to make the process as little oppressive to the debtor and as productive to the creditors as circumstances will allow, paying of course, all due regard to general usage and established practice in like cases. We can not say, however, that it would necessarily, and under all circumstances be illegal or improper for the officer to set up in one lot the whole of a stock in trade, or the entire contents of a workshop, or all the machinery, tools and fixtures of a specific manufactory. It is certainly possible to conceive of cases in which subdivision might be injurious to all parties concerned. For instance, it might be more judicious to sell a pair of horses together, at one collective price, than to sell each horse separately." Accord: Matson v. Sweetser, 50 Ill. App. 518 (1893); National Bank of the Metropolis v. Sprague, 20 N. J. Eq. 159 (1869). Compare Yost v. Smith, 105 Pa. St. 628, 51 Am. Rep. 219 (1884); Smith v. Meldren, 107 Pa. St. 348 (1884); Furbush v. Greene, 108 Pa. St. 503 (1885), with Klopp v. Witmoyer, 43 Pa. St. 219, 82 Am. Dec. 561 (1862); Grim v. Reinbold, 148 Pa. St. 446, 23 Atl. 1129 (1892).

nati. The property was appraisesd at $900, and the sheriff makes his return that the property "was struck off and sold to Joseph Temple for the sum of $860, it being more than two-thirds of the appraised value of said lot or parcel of land, and he being the highest and best bidder for said premises and the purchaser thereof." The sheriff also indorsed upon the order of sale the following statement of facts, viz.:

"1858, March 15. In this case, at the sale of the premises herein described, George B. Whitcomb bid for said property the sum of $875, whereupon the same was knocked down and struck off to him, and he paid me $25, and promised and agreed with me and the other parties interested, that he would pay the balance of said purchase money within a limited time, or that it should be returned sold to the next highest bidder, and that the $25 so paid should be forfeited to the interested parties; and the said George B. Whitcomb having failed to pay said sum, so bid by him, I have returned the sale to the next highest bidder (see return hereto attached), and ask the court, in making their final order in said action, to direct what is to be done with the $25 forfeited as aforesaid.

Edward Morse, for plaintiff.

Joseph McDougal, for McManama.
R. D. Handy, for purchaser, Temple.

R. MATHERS, Sheriff."

STORER, J.: The duty of the sheriff, whenever he is required to sell real estate upon execution is plain.

1. He must demand and receive the purchase money from the purchaser before he makes his return.38

38A sale on execution is a cash sale. Negley v. Stewart, 10 Serg. & R. (Pa.) 207 (1823); Bayley v. French, 2 Pick. (Mass.) 586 (1824); Robins v. Bellas, 2 Watts (Pa.) 359 (1834); Swope v. Ardery, 5 Ind. 213 (1854); Ex parte State, 15 Ark. 263 (1854); Isler v. Andrews, 66 N. Car. 552 (1872); Chandler v. Goodrich, 58 N. H. 525 (1879); Dazet v. Landry, 21 Nev. 291, 30 Pac. 1064 (1892); Simmons v. Cook, 109 Ga. 553, 34 S. E. 1033 (1899); Meherin v. Saunders, 131 Cal. 681, 63 Pac. 1084, 54 L. R. A. 272 (1901); Rowe v. Granger, 118 App. Div. (N. Y.) 459, 103 N. Y. S. 439 (1907). If the officer extends credit to the purchaser he does so at his own risk. Denton v. Livingston, 9 Johns. (N. Y.) 96, 6 Am. Dec. 264 (1812); McCluskey v. MeNeely, 8 Ill. (3 Gilm.) 578 (1846); Harper v. Fox, 7 Watts & S. (Pa.) 142 (1844); Disston v. Strauck, 42 N. J. L. 546, 2 Ky. Law Rep. 100 (1880); McLendon v. Harrell, 67 Ga. 440 (1881); Robinson v. Brennan, 90 N. Y. 208 (1882); Willbanks v. Untriner, 98 Ga. 801, 25 S. E. 841 (1896); Commonwealth v. Comrey, 174 Pa. St. 355, 34 Atl. 581 (1896). In a number of jurisdictions, if the execution creditor becomes the purchaser the officer may credit the amount of the execution debt in payment of the bid. Nichols v. Ketcham, 19 Johns. (N. Y.) 84 (1821); Russell v. Gibbs, 5 Cow. (N. Y.) 390 (1826); Mark v. Osmer, 138 Pa. St. 1, 20 Atl. 841 (1890); Krumbhaar v. Yewdall, 153 Pa. St. 476, 26 Atl. 219 (1893); see Pa. Act of April 20, 1846, P. L. 411, 19 P. & L. Dig. of Dec. 34350; Wilson v. American Photo-Relief Printing Co., 4 Wkly. Notes Cas. (Pa.) 13 (1877); Boots v. Ristine, 146 Ind. 75, 44 N. E. 15 (1896). Compare Watson v. Hoboken Planing Mills Co., 156 App. Div. 8, 140 N. Y. S. 822 (1913). If there is a dispute between creditors as to the application of the proceeds of the sale the officer should bring the money into court. Fowler v. Pearce, 7 Ark. 28, 44 Am. Dec. 526 (1846); Williams v. Smith, 6 Cal. 91 (1856); Hotchkiss v. Homan, 11 Pa. Dist. R. 43 (1901); Atlanta Trust &c. Co. v. Nelms, 115 Ga. 53, 41 S. E. 247 (1902).

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