Johnson v. Nelson

This is an appeal from an order made after final judgment setting aside a sheriff’s return of sale for the foreclosure of a mortgage and directing a new order of sale to be issued.

The facts are undisputed and are as follows: The mortgage was duly foreclosed and a decree of sale of the mortgaged premises made and entered, and an order of sale duly issued thereon and placed in the hands of the sheriff for execution. On the day on which the sale was advertised to take place the plaintiff and also one of his attorneys were present at the time and place of sale; the plaintiff personally made a bid of an amount somewhat less than the total sum then due. His attorney also on his behalf made a bid of the total sum due. There were no other bidders. A misunderstanding arose between the sheriff and the plaintiff as to the sum actually bid, the sheriff insisting that he had struck off the property for the amount of the plaintiff’s personal bid. Thereupon, and before the sheriff had made any return of sale, the plaintiff moved the court for an order vacating and setting aside the sale. When this motion came on for hearing, the sheriff not yet having made his return of sale, the court denied…