Woodruff, respondent, agt. Bush and others, appellants, 8 How. Pr. 117

Taggart, Justice. I think the learned justice was right in refusing to grant the motion to set aside the sale on the ground that the property was not sold in conformity with the map and designation of the parcels furnished by the defendant. The stipulation must have a reasonable construction. The defendant had no right to furnish a map and direct the sale to be made in conformity thereto, unless such map designated and marked out the land in such manner that the same could be sold without prejudice to the plaintiff’s interest.

He was bound too, to include all of the mortgaged premises within the compass of his map or within the designation of the property to be sold, and without including any other lands with the mortgaged premises. This he has not done. His own affidavit concedes that about four acres of the mortgaged premises were not included in his map, and were not designated to be sold. The plaintiff’s affidavits disclose that some of the lots designated on the map embraced lands included in the mortgage united with lands not included therein.

In some instances the greater portion of said lots were made up of other lands, and, in some instances, including but a mere triangle or corner of the lands embraced in the decree, and so located as to be of very little value, and some of the pieces were irregularly shaped by being intersected with said other lands. The plaintiff was not bound to have the sale made according to the designation upon such map, and was clearly right in rejecting the same, and designating the parcels to be sold himself.

It is true the affidavits are contradictory as to the character of the map in question, but for the purposes of this motion we must assume that the plaintiff’s affidavits are correct. The defendant was bound to make out his .case; the burden of proof is upon him, and if the counter affidavits furnish a full answer to the case made by him, he must fail in his motion; besides it was competent for the defendant to have made his map. or a copy of it, part of his moving papers, and we could then have seen whether it was such a map as the plaintiff was bound to regard in making the sale.

The second point on which the defendant relies to sustain his application, I think is tenable. The plaintiff directs the sale to commence, designates the parcel to be sold; bids are made upon it by different individuals, and it is finally struck off to him. He is then the purchaser, and substantially the owner of the land. Another parcel, also designated by the plaintiff, is offered for sale; bids are made upon it. The plaintiff then refuses to carry out his previous bid, cancels his purchase without the consent of the defendant, and orders the same land to be resold with other land.

This is done, too, after some of the bidders have left the place of sale. It is said that there was a mistake and the court would have granted relief. I concede this, but this court would not have set aside the sale on motion of the plaintiff, without notice to" the defendant; and what the court will not order to be done without notice to the defendant, it surely will not permit the plaintiff to do himself. By allowing this sale to stand, a precedent will be established that may lead to great abuses.

The plaintiff and sheriff may, under the sanction of this court, combine to deprive the defendant of his rights without restraint; cases may occur where the sale had been completed, .and the decree satisfied, leaving the defendant some valuable property, besides the amount of the decree; after the defendant leaves the place of sale and bidders have gone home, the plaintiff claims that he has been deceived in the purchase of the property; that lands he supposed he had purchased were not included within the boundaries, or some other .mistake has occurred, no matter of what character, he declines taking his deed and completing the purchase, orders the sheriff to resell.

The sheriff complies, and the reserved property is first sold. It will be answered that in the case supposed the defendant has his remedy against the plaintiff, but that remedy is precarious, and the defendant has a right to have his property Sold according to law; and when once sold the plaintiff has no right of his own mere motion to vacate such sale. It is said in this case, that the defendant has not been injured by the resale, but has realized the full value of his property. That is not, in my opinion, material.

There is a principle of public policy involved in this case that forbids the toleration of such a proceeding. The order appealed from must be reversed with costs, and the order to set aside the sale granted with costs.