Opinion
April 24, 1950.
In an action to set aside a sale of real property made by a sheriff under execution, to cancel the certificate of sale and the deed, order and judgment (one paper) granted on the pleadings in favor of plaintiff-respondent John Giorgetti, reversed on the law and the facts, without costs, and the motion denied, without costs. Inasmuch as the execution was issued and the sale conducted several months prior to the docketing of the judgment, it was correctly held that the sale was void and that the deed conveyed no title to the purchasers. (Civ. Prac. Act, §§ 648, 643.) Reversal is ordered so that evidence may be taken of expenditures made by appellants to preserve the property. It does not appear in the pleadings that such expenses were gratuitous; and if not, appellants are equitably entitled to their recovery. In the interests of better pleading, amendment should be permitted so as to allege such expenses as a counterclaim. Johnston, Adel and Sneed, JJ., concur; Nolan, P.J., and Carswell, J., concur in the result.