¶1The interlocutory judgment of sale should have contained the provision inserted by the ex pcwte order amending it. The action of partition was brought within three years of the issue of letters of administration on the estate of the deceased owner and his debts were, therefore, a lien on his real property.
¶2Under the .provisions of section 1538 of the .Code of Civil Procedure and by proper practice the sale should have been directed to be made free from the lien of decedent’s debts and the proceeds ordered paid into court to satisfy such debts as might be established. Without the direction of the judgment, however, the sale was made free from the lien of debts and then the interlocutory judgment was amended .nunc pro tunc by inserting such direction. The court had power to amend its interlocutory judgment and was not compelled to set aside an irregular exporte order so providing, if it was one which should have been made on regular notice. The only criticism which can be made is that a resale should have been directed. We should be inclined to modify the order in that respect if the record disclosed any reasonable possibility that the property would bring as much or more on another sale. The affidavits show that the price obtained was the full value of the property. Besides, the appellant did not ask for a resale but put his motion on the ground that the court had no power to allow the amendment. There being no reasonable possibility that the property would bring any greater sum if again sold, the court would not be justified in putting the parties to the expense and trouble of a resale simply for the purpose of correcting a mere technical .irregularity which was cured by the amendment.
¶3The order should be affirmed, with ten dollars, costs and disbursements.
¶4All concurred, except Parker, P. J., and Smith, J., dissenting.
¶5Order affirmed, with ten dollars costs "and disbursements.