¶1 Dissenting Opinion.
¶2 delivered a partially dissenting opinion.
¶3 As shown by the controlling opinion herein, the grantor in the deed of trust actually owned the northeast quarter of section 17, except 10% acres in the northwest corner thereof, and owned the northwest 40 acres of section 16. The deed of trust undertook to except 10% acres in said northeast quarter of section 17, but described it as being elsewhere than in the section. The exception, therefore, amounted to nothing so far as the northeast quarter of section 17 is concerned. The deed of trust was effective, however, to convey to the trustee all of that quarter section except the 10% acres in the northwest corner thereof which the grantor did not own. Section 2118, Code of 1930. As to the 10% acres not owned by the grantor, the trustee’s sale is, of course, invalid. Neither did it pass to the purchaser any title to the 10% acres- in the northeast corner of that quarter section, not because it was not included in the deed of trust, but because although included therein it was expressly excepted in the published notice of sale; and not having been advertised for sale, the attempted foreclosure was void as to that *566 10% acres. However, I am of the opinion that the sale of the remaining 139 acres of the northeast quarter of section 17 was good.
¶4 As to the northwest 40 acres of section 16, it was owned by the grantor; it was described in the deed of trust; it was correctly advertised for sale; and was embraced in the trustee’s deed. In each instance, as shown by the controlling opinion, it was specifically described as the “northwest 40 acres of the northwest quarter of .section 16.”
¶5 It is true that the deed of trust and trustee’s deed, in addition to conveying this 40' acres in its entirety, seek to superimpose thereon a description purporting to cover 10% acres as an exception from section 17, but describing an area by metes and bounds in the northwest corner of section 16; nevertheless, the purported exception is shown to be a part of the description of “section 17, township 8, range 4 east, except 10% acres described as follows: Beginning at the northeast corner of said quarter and running 42 rods east on the line between sections 8 and 17, thence south 40 rods, thence west 42 rods, thence north 40 rods to the point of beginning.” Therefore, it is manifest that while the exception is void as describing part of the northeast quarter of section 17, it is neither sufficient to except 10% acres in the northwest 40 acres of section 16, for the reason that it is obvious that the draftsman was thereby undertaking to except a part of the northeast quarter of section 17, since immediately following the purported exception the whole of the northwest 40 acres of section 16 is conveyed in both the deed of trust and the trustee’s deed, and the same was advertised for sale without any attempt to make an exception therefrom.
¶6 I ain therefore of the opinion that in so far as the northwest 40 acres of section 16 is concerned, the description of a parcel thereof as being a part of section 17, and undertaking to except it from section 17, rendered the exception wholly ineffective as to either, in the absence of *567 a reformation of the instrument; and that therefore the foreclosure was good to convey a valid title to all of the land except as to the 10% acres not owned by the grantor, and the 10% acres in the northeast corner of section 17, which was not advertised for sale as aforesaid; that the appellees would not be entitled to recover for rents and profits, and for timber sold from the lands over the period of many years since the sale, other than from the 10% acres in the northeast corner of said section 17, excepted from the notice of sale.