Nelson et al. v. Bronnenburg.

no right to divide the property into lots at all; he had an undivided interest to sell, and the quantity and location of the land covered by that undivided interest could be ascertained only upon a partition of the lot. But, further, the sheriff's sale in mass instead of in parcels being voidable and not void, the right to have the sale set aside therefor may be waived by parol, Vilas v. Reynolds, 6 Wis. 214; and may be barred by delay. Roberts v. Fleming, 53 Ill. 196. Some objection to the sale must be made in a reasonable time, or else some good reason must be shown why such objection was not made in a reasonable time. Where the property sold is subject to redemption within a given time, it has been held that the application to set the sale aside must be made before the expiration of that time, unless some excuse be shown for the delay. In Raymond v. Pauli, 21 Wis. 538, the court held, that an execution sale of land, in disregard of the law, which requires it to be offered in parcels, is not void, but only voidable at the instance of the party aggrieved. The remedy is, to apply within a reasonable time, and have the sale set aside on that ground. Undoubtedly, a reasonable time must be some time within the period fixed by law for a redemption. If that period be allowed to expire and a deed be executed, the application can not afterwards be made, unless under special circumstances of fraud or mistake, showing some reasonable excuse for the delay. In Raymond v. Holborn, 23 Wis. 57, the same doctrine is asserted, and the court say that, by making no effort to redeem while the right to redeem existed, the party must be presumed to have acquiesced in the sale.

The present complaint does not show that the plaintiff made any objection to the execution sale, and it shows no reason why such objection was not made, and it does show that the year for redemption expired on the 28th of April, 1873, and that the plaintiff did not commence this suit until afterwards; he waited until the purchaser at the execution sale had obtained his deed and had made a deed to his co-defendant, and the complaint alleges no excuse whatever for the delay. The

Highfill . Monk.

rule, requiring the objections to such a sale to be made in a reasonable time, has been adopted generally in those States which hold such a sale to be voidable and not void. San Francisco v. Pixley, 21 Cal. 56; Cunningham v. Cassidy, 17 N. Y. 276; and see the cases cited in Freeman on Executions, section 296.

We think the complaint contained no cause of action against either of the defendants, and that the court erred in overruling the demurrer thereto; and for this error the judgment of the court below ought to be reversed.

PER CURIAM.-It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is hereby in all things reversed, at the costs of the appellee, and this cause is remanded, with instructions to the court below to sustain the demurrer to the complaint.

No. 9200.

HIGHFILL v. MONK.

NEW TRIAL.-Record.-A ruling assigned as cause for a new trial, to be available in the Supreme Court, must appear by the record to have been made, the statement of it in the motion not being sufficient. EVIDENCE.-County Order.-Set-Off.-Answer.-A county order is admissible in evidence in support of a set-off for it, where the answer of set-off so identifies it by date and number, and amount of principal and interest, that the opposite party can not be misled.

SUPREME COURT.-Weight of Evidence.-If there be any evidence tending to support the finding below, the Supreme Court will not disturb it, however overwhelming the testimony to the contrary may be.

From the Crawford Circuit Court.

N. R. Peckinpaugh and W. T. Zenor, for appellant.

E. M. Tracewell, B. P. Douglass, S. M. Stockslager and S. D. Luckett, for appellee.

Highfill. Monk.

MORRIS, C.-This suit was brought by the appellant against the appellee. The complaint contains five paragraphs. The first is upon a promissory note for fifty dollars, executed by the appellee to the appellant. The second is for money had and received by the appellee for the use of the appellant. The third paragraph is upon a contract alleged to have been made between the parties; that the appellant, being treasurer of Crawford county, for the years 1876, 1877, 1878 and 1879, under an agreement and understanding with the appellee, accepted and received checks from him, drawn on himself, in favor of divers parties, in payment of the county tax of the parties in whose favor such checks were drawn, and charged himself with the amount of county tax so paid on the books of his said office, and accounted therefor to the proper authorities; that, in consideration thereof, the appellee agreed to pay him the amount of such checks in county orders, at their par value. A bill of particulars of the orders and checks so drawn by the appellee, and received by the appellant, is filed with this paragraph; that there is due the appellant, on account of the checks so received by him, $475, for which he demands judgment. The fourth paragraph is for money paid by appellant to and for the use of the appellee. The fifth paragraph is for $62.59, paid by the appellant for the appellee in paying his taxes for the years 1877 and 1878.

The appellee answered the complaint in five paragraphs. The first was the general denial; the third alleged payment; the second and fourth paragraphs were substantially the same. It is stated in these paragraphs, that the appellant was treasurer of Crawford county during the years 1876, 1877, 1878 and 1879, and that, during those years, there was an understanding and agreement between the appellant as such treasurer and the appellee, that the latter, then owning a large amount of county orders on Crawford county, should deposit the same with the appellant as such treasurer, and draw orders on him from time to time in payment of taxes due said county, in payment of such deposits; that he placed in the hands of

Highfill v. Monk.

the appellant, as such treasurer, protested orders on Crawford county, bearing interest at the rate of six per cent. per annum, of different dates and amounts, amounting in all, principal and interest, to $3,000, a bill of particulars of which is filed with said paragraph; that the appellant, as such treasurer, as the said orders were deposited with him, converted said orders to his own use, by taking credit therefor at their face as redeemed orders, in his settlement as such treasurer with said county. The appellee offers to set off said orders, or so much thereof as may be necessary, against any amount which the appellant might prove against him, and demands judgment for the balance.

The fifth paragraph of the answer was to the fifth paragraph of the complaint.

The appellant replied to the answer by a general denial and several special paragraphs, which need not be particularly noticed. The cause was submitted to the court for trial. The court found for the appellee in the sum of $97.08.

The appellant filed a motion for a new trial, for the following reasons:

1. Because the court erred in permitting the appellee to amend, on the trial of the cause, the second paragraph of his answer, and his bill of particulars.

2. Because the court erred in admitting in evidence, over the objection of the appellant, a certain county order, dated day of 187-, No. 332, for the sum of $237.35, purporting to be issued by Crawford county to Malachi Monk. 3. That the court erred in admitting in evidence, over the objection of the plaintiff, a certain county order, purporting to be issued by Crawford county, dated the

day of

187-, to one Malachi Monk, for the sum of $300, No.

4. That the finding of the court is not sustained by sufficient evidence.

5. That the finding of the court is contrary to law.

6. That the finding of the court is contrary to evidence. The motion for a new trial was overruled, and final judg

Highfill v. Monk.

ment rendered for the appellee. The evidence is properly in the record. The overruling of the motion for a new trial is assigned as error.

The appellant insists that the court erred in permitting the appellee to amend, on the trial, the second paragraph of his answer. There is nothing said in the record as to such an amendment, except in the motion for a new trial. If such an amendment was made, the record fails to show that the appellant objected, or that he took any exception to it. Νο question as to any amendment made to the pleadings is presented by the record to this court for decision.

The court below permitted the appellee to put in evidence, in support of his answer, two orders issued by Crawford county and payable to Malachi Monk, the appellee. One, No. 332, dated April 2, 1877, calling for $237.35, on which there had accrued $8.19 interest, making in all $245.54; the other, No. 490, and calling for $300, on which there had accrued $50 interest. The principal dispute between the parties is in relation to these orders.

The objections taken to the introduction of the orders as evidence are, that they were irrelevant, immaterial and incompetent, and not sufficiently described in the bill of particulars. The orders are described in the bill of particulars by their dates, numbers and the amount, not of their face, but by stating the amount of principal and interest-the first as calling for $245.54, and the other for $350. We think the description of the orders in the bill of particulars was sufficiently certain to apprise the appellant of what was intended. The date and numbers of the orders being given, the appellant could not have been misled.

It would seem to be quite clear that the orders were both relevant and material evidence. The appellee claimed in his answer that he had, pursuant to an agreement between him and the appellant, deposited a large number of orders, including the orders under consideration, drawn by the county of Crawford and payable to himself, with the appellant, to be