Upon consideration of this case we see no cause to change our views with regard to the questions which we held entitled the appellants to a reversal of the judgment, but have concluded that there are sufficient allegations in the petition, supported by enough evidence, to entitle the plaintiffs to have the cause remanded, so that they may have the sale set aside, if they can, since it appears that the court below rendered judgment in favor of plaintiffs on other grounds, for which reason the issue with regard to the sheriff's sale may not have been developed as fully as perhaps might have been done. The petition in this respect is deficient, but it shows that the lien was foreclosed on four several lots of land worth $4000, and contains allegations that one-half of the lot, on which no improvements were, could have been sold, and would have brought more than the judgment against the lots and all costs. Plaintiffs averred that they had tendered the money paid on the bid back to the purchaser, submitted themselves to the court, and asked that the sale be set aside. There was evidence that the four lots were worth about $600 each, and the improvements thereon were worth $1500 or $1600. There was a lien thereon for $900. The amount of the bid was $375. While it does not so appear clearly, yet the evidence warrants the conclusion that the improvements on the lots did not cover all of them, and that one or more of them could have *Page 212 been sold separately. This fact was overlooked by the court when the case was decided. The statute regulating execution sales provides that if real property situated in any town or city, taken in execution, consists of several lots, each shall be offered by the sheriff for sale separately, if susceptible of a separate sale by reason of the character of improvements thereon. Revised Statutes (1879), art. 2305. An order of sale is an execution. Article 2281. While some of the articles under the title, "Execution," will not apply to an order of sale, yet the article under consideration and a number of others do. From the evidence that it was the duty of the sheriff to have sold the property in accordance with the article of the Revised Statutes above cited, by offering for sale one lot at a time, we have concluded, therefore, that the motion for a rehearing should be granted so far as to remand the cause for another trial.
Motion granted. Reversed and remanded.