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67 Or. 254

Bunch v. Thomblison

Oregon Supreme Court

Decided October 21, 1913

Oregon Supreme Court · decided 1913-10-21

<p>Mortgages — Sale—Correction of Errors — Notice.</p> <p>Where the description in a deeree for foreclosure, the notice of sale, and other subsequent proceedings, omitted a portion of the land which was eorreetly described in the mortgage and the complaint, the court, even if it could correct by a decree nunc pro time the error in the decree, could not, by such an order, correct the notice of sale, since the portion of the land omitted therefrom was never, in fact, advertised under subdivision 2, Section 237, L. O. L., providing that the notice of sale shall particularly describe the property.</p> <p>[As to causes and proceedings for the reformation of instruments, see note in 65 Am. St. Eep. 481. As to reformation on the ground of mistake, see note in 117 Am. St. Eep. 227.]</p>

Reversed · Decided 1913-10-21

¶1Opinion by

Mr. Chief Justice McBride.

¶2For the purposes of this case many of the contentions in the able brief of counsel for respondent may be admitted. But conceding without deciding that the court had power to correct the decree to conform to the original complaint and mortgage, and that it could do so under the circumstances without notice to the defendant Leonard, there remained other matters which it could not correct nunc pro tunc. The fact remains that the land in dispute was never advertised for sale, and therefore was never in fact sold. Subdivision 2, Section 237, L. O. L., requires that the notice of sale shall “particularly describe” the property to be sold. It is admitted that the notice of sale in this case contained no description of the property in dispute, but described another and different subdivision. It was not in the power of the court by a nunc pro tunc order, or otherwise, to dispense with a proper notice of sale of the property.

¶3*257For this reason the judgment of the Circuit Coart is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.
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