Opinion
October Term, 1897.
Judgment and order affirmed, with costs.
The grounds urged by the defendant upon this appeal, that the sale of March 27, 1896, is void because it was not made pursuant to a foreclosure by action, or as authorized by title 9 of chapter 17 of the Code of Civil Procedure, are not available to him. The record title to the land was in the defendant, and he assumed to sell by public auction the property, pursuant to the contract of December 2, 1895, and became the purchaser. The plaintiff, by bringing this action for $963.17, the difference between the amount bid by the defendant and the amount due under said contract, waived the right to repudiate the sale, and ratified it. The defendant by his answer does not allege that the sale was void, but asserts, in legal effect, that the sale was valid, and that he cut off the plaintiff's right to redeem the property, and alleges that the sale was not subject to the unpaid taxes and the mortgage, but that they were to be paid out of the avails of the sale; and deducting the amounts due for taxes and on the mortgage, there remained due from the plaintiff to the defendant, $892 71, for which the defendant demands judgment against the plaintiff. The record does not disclose that the defendant took the position on the trial that the sale was void for the reason now urged, and the court submitted to the jury the question whether the sale was made subject to the liens, or whether it was stated that the liens were to be paid out of the avails of the sale. We must assume that this question was properly submitted to the jury, for the charge is not contained in the record, and it does not appear that either party took exception thereto. We think that the defendant is estopped from now raising the question that he has not acquired the legal title of the premises, free and clear from the claim of the plaintiff. The judgment should be affirmed, with costs. All concurred.