COPE, J. delivered the opinion of the Court-FIELD, C. J. and NORTON, J. concurring. This is an action of forcible entry and detainer. The necessary facts are alleged in the complaint and found by the Court, and the judgment is in accordance with the pleadings and finding. It is objected that the Court erred in awarding as damages the value of the rents and profits, such value not being stated in the complaint. We are of opinion that no error was committed in this respect, as the statute does not require the value to be stated Judgment affirmed. CITY AND COUNTY OF SAN FRANCISCO-v. PIXLEY et al: 1 SALE IN MASS, INVALID.-A sale in mass, under a writ of execution, of real estate, consisting of several known and distinct parcels, at a price greatly below the actual value of the property cannot be sustained against the objection of the judgment debtor. IDAM-NOT VOID, BUT VOIDABLE.-Such sales are not absolutely void, but are voidable, and will be set aside upon reasonable and proper application, when there is reasonable ground for belief that they were less beneficial to the creditor or debtor than they would have been had a different mode been pursued. IDEM-WHEN MAY BE SET ASIDE.-Under an execution against the city and county of San Francisco, the Sheriff sold a tract of land, belonging to the corporation, one mile in length and half a mile in width, which had, long previous to the sale, been laid out by the city authorities into blocks and streets of designated dimensions and boundaries, and marked upon the official map of the city; part of the land lay under the tide waters of the bay of San Francisco, and the dry land was intersected by a navigable stream. The property was sold in mass for three hundred and sixty dollars, and was worth at the time about $75,000: Held, that upon application by the judgment debtor, the sale was properly set aside, on account of the manner in which it had been made. SETTING ASIDE EXECUTION SALE.-When the application to set aside a voidable sale under execution should be made by motion and when by bill in equity, discussed. *APPEAL from the Fourth Judicial District. The facts are stated in the opinion. S. Heydenfeldt, for Appellant. [57] 1 Cited as authority in Blood v. Light, 38 Cal. 654; see also Hunt v. Loucks, 38 Cal. 882; Vigoureux v. Murphy, 54 Cal. 351; Hibberd v. Smith, 67 Cal. 565. See 13 Wall. 514. Hoge & Wilson, for Respondent, cited Pr. Act, sec. 223; Jackson v, Newton, 18 Johns. 356; Cunningham v. Cassidy, 17 N. Y., 276. FIELD, C. J. delivered the opinion of the Court-COPE, J. and NORTON, J. concurring. This is a suit on the equity side of the Court to set aside a sale of certain real property, made under execution issued upon a judgment against the city of San Francisco. The facts of the case, so far as they are material for the determination of the appeal, are as follows: In January, 1856, James Haslett recovered a judgment in the late Superior Court against the city of San Francisco for about $1,020. Upon this judgment the sum of five hundred and twenty-five dollars was collected and credited. Afterwards the judgment was assigned by Haslett to the defendant McMinn, and by McMinn to the defendant Reese. Upon the abolition of the Superior Court, the record and judgment were, by operation of law, transferred to the District Court; and subsequently, by order of that Court, the judgment was revived against the existing corporation-the City and County of San Franciscoas the successors of the former municipal corporation. Some question is made as to the efficacy of the proceedings for the revival of the judgment, which we do not consider important to notice. In December, 1857, execution was issued for the balance due upon the judgment, and several tracts of land were sold thereunder by the Sheriff. One of them is bounded, according to the official map of the city and county, as follows: "On the west by Folsom Street; on the north by the south side of Tracy Street extended eastwardly to the eastern front of the city of San Francisco as fixed by the Legislature of 1851; on the east by ships channel in the bay of San Fran cisco; and on the south by the north line of Corbett [58] Street entended eastwardly to ships *channel in the bay." This tract was bid off by the defendant Pixley, for the sum of three hundred and sixty dollars. In making the bid, Pixley acted simply as the attorney of one Pearson, and by direction of Pearson he assigned the certificate of sale received from the Sheriff to one Wheeler, a clerk in the office of Pearson. It is unnecessary to allude to the other tracts sold, as from the decision of the District Court setting the sale aside, Pixley and Wheeler alone appeal. So far as Pixley is concerned, the appeal is not seriously prosecuted; nor, indeed, could he be allowed to urge any objections to the decree, for he disclaims in his answer all interest in the subject matter of the suit, and the decree does not charge him with costs. The appeal must be considered, therefore, as prosecuted by Wheeler alone, and must be determined upon the regularity and validity of the sale of the tract described. This tract is about a mile in length by half of a mile in width; and was, long previous to the sale, laid out by the city authorities into blocks and streets of designated dimensions and boundaries, which are marked on the official map of the city. Part of the land lies under the water, and the dry land is intersected by Mission Creek, which is a navigable stream. The whole tract was sold in one entire mass, without regard to the natural divisions made by the creek, or the divisions into blocks and streets as plotted on the official map, or to the fact that part of the land lies under the tide waters of the bay. It is alleged by the plaintiff, that the entire tract was worth at the time about $75,000; and it is evident that the different parcels, into which it is divided, might have been sold separately at prices approximating in the aggregate this statement of the value of the property, and that several of the parcels sold separately would have produced an amount exceeding the sum bid. A sale in this manner of several known parcels at a price greatly below the actual value of the property cannot be sustained against the objection of the judgment debtor. A sale in mass of several distinct known parcels is against the express direction of the statute, which, in its provision in this respect, affirms a rule previously prescribed by the almost uniform decisions of the Courts. (Pr. Act, sec. 223.) Many persons might be disposed to bid for separate parcels of a particular tract who have neither the wish nor *the. [59] means to acquire the whole tract. Such sales are, therefore, generally condemned, as tending to the sacrifice of the property of the debtor, and his consequent oppression. "They are," says Mr. Chief Justice Spencer, "not to be countenanced or tolerated. They are oppressive and unnecessary." (Jackson v. Newton, 18 John. 356.) It has, in consequence, been almost a matter of course to set such sales aside upon the application, within a reasonable time thereafter, of the debtor or parties interested in the premises, and proof of actual or probable loss from the course pursued. Such sales are not, indeed, absolutely void. Cases may occur where a sale in this manner would be more beneficial to the debtor than a sale of the parcels in detail; also where a division, though actually existing, may not be so well known and notorious as to require its recognition by the Sheriff and bidders. But where the property consists of distinct and well known parcels, such sales are voidable; and upon seasonable and proper application, when there is reasonable ground for belief that they were less beneficial to the creditor or debtor than they would have been had a different mode been pursued, the Court will not hesitate to set them aside. (Cunningham v. Cassidy, 17 N. Y. 276.) Whether the application for relief should be presented by motion to the Court or by bill in equity will depend upon the special circumstances of the particular case. In Bryan v. Berry, 8 Cal. 135, this Court approved of the rule laid down by the Supreme Court of Illinois in Day v. Graham, 1 Gillman, 435. In the latter case, the Court, after citing several authorities, said: "Upon these authorities we are of opinion that when the plaintiff in the execution is the purchaser, and before he conveys to another, the Court will set aside the sale upon motion. But after he conveys to a third person and when a third person becomes a purchaser, the Court will not determine in this summary way questions which may affect the rights of others not before the Court, and without opportunity of explaining away those circumstances which might destroy his title." The case at bar differs from that of Day v. Graham in this: that there a deed had been executed by the Sheriff; but here no deed has been executed upon the sale, but merely a memorandum or certificate-a deed, [60] under our statute, only following in case a *redemption is not made within six months thereafter. Whether the rule for this reason should be in any respect modified, it is unnecessary to express any opinion. No question was made on the argument as to the mode in which relief is sought in the present case, by bill in equity. Judgment affirmed. TEWKSBURY v. O'CONNELL. CONTRACT WITH MUTUAL COVENANTS, TO BE EXECUTED BY ALL.-A contract, purporting to be made between several parties, containing mutual covenants of which those of one party are the consideration of those of the others must, to be valid, be executed by all, and cannot be enforced against one executing, by another whc fails to execute. DEED OF TENANTS IN COMMON, HOW EXECUTED.-Thus, where a number of tenants in common were parties to a deed of partition, by the terms of which cach party conveyed and released his undivided interest in the whole premises in consideration of the conveyance to him of the undivided interests of the others in a specified portion, and the deed was signed by a large proportion of the parties, but not by all: Held, that as a conveyance it was void as to those who did sign, and that they still retained their interests as tenants in common in the whole tract. DEED OF PARTITION, HOW MADE EFFECTUAL.-Where a deed of partition is invalid as a conveyance, by reason of its non-execution by some of those who are parties to it, it may become effectual by the parties taking and holding in severalty in pursuance of its terms and dealing with their respective portions as if owned in severalty, but such acts of ratification do not operate to make the deed a valid conveyance, but only by way of estoppel or as a determination of boundaries and only upon the interests of those performing them. A party who signed the deed is not estopped from insisting upon its invalidity by reason of any acts of ratification either of the others who did execute or of those who failed to execute. APPEAL from the Seventh Judicial District. The agreement of partition upon the validity of which the decision is placed commences as follows: "This agreement of partition and release, made this fourteenth day of July, A. D. 1856, between John H. Saunders, H. P. Hepburn, and Eugene Musson, of the city of San Francisco, in the State of California, of the first part; "Martina Castro de Alvarado and Juan B. Alvarado, her hus-*band, David Goodale and Henry Ben- [61] son, of Contra Costa County, of the second part; "Antonio Castro, José Ramon Castro, John Provizzo, John Davis, Mancilla B. Bradley, by his attorney in fact, J. M. Tewksbury, Lyman King, and C. P. Pollard, of the third part; 1 Emeric v. Alvarado, 64 Cal. 574, 577, 578, 579. See 10 Nev. 134. |