Carter v. Hyatt

• Decision Date: 05 July 1907
• Docket Number: 15,134
• Parties: JOHN D. CARTER v. EMMA HYATT
• Court: Kansas Supreme Court

91 P. 61

76 Kan. 304

JOHN D. CARTER v. EMMA HYATT

No. 15,134

Supreme Court of Kansas

July 5, 1907

Decided July, 1907.

Error from Pratt district court; PRESTON B. GILLETT, judge.

STATEMENT.

JOHN D CARTER brought this suit in the district court of Pratt county to recover a certain tract of land, admitting that he should first pay the amount which should be found to be due from him after an accounting, for which he prayed. In his petition he alleged, in substance, that in August, 1886, he mortgaged the land to secure the payment of a note and interest coupons; that he defaulted in payment; that a suit was brought against him by the holder of the mortgage for the foreclosure thereof; that judgment was therein rendered against him for the debt, and a decree was made for the foreclosure of the mortgage and for the sale of the land that an order of sale, unauthenticated by the seal of the court, was issued in due time, and the sheriff sold the land in accordance with the mandate thereof and made a proper return to the court of his proceedings thereunder; that thereafter such sale was confirmed by the court, and the sheriff was ordered to make a deed of the land to the purchaser, which was done; that the order of sale, and all the proceedings of the sheriff thereunder, and all the subsequent proceedings of the court in the matter, were void by reason of the omission of the clerk to authenticate the order of sale by attaching thereto his official seal; and that the defendant was in possession of the land under a conveyance from the purchaser at the sheriff's sale.

A copy of the order of sale was attached, which shows that the decree of foreclosure was rendered in October, 1889, and the order of sale, without the seal, was issued in April, 1890. The return thereon indicates that the sale was conducted according to law. No allegation of fraud in the sale, nor of anything whatever which would affect the rights of the plaintiff, is made. The only infirmity in the proceeding complained of is the absence of the clerk's seal from the order of sale.

A general demurrer was filed to this petition and was sustained by the court. To reverse this ruling Carter brings the case here.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDICIAL SALES--Seal Omitted from Order of Sale--Effect of Confirmation. Whether or not an order of sale issued by the clerk of a district court to the sheriff, directing him to sell the land in a foreclosure suit in accordance with a former decree of the court, is authenticated by the seal of the court is a fact necessarily involved in the subsequent adjudication in the confirmation of, or refusal to confirm, the sale.

2. JUDICIAL SALES--Presumption of Regularity--Collateral Attack. In such a case, if the court, having jurisdiction of the subject-matter and the parties, confirms the sale, it will be presumed it found that the order of sale was so authenticated; and, if such finding be erroneous, the adjudication is not by reason thereof void but is only voidable, and is vulnerable to attack only in a direct, and not in a collateral, proceeding.

George E. McMahon, for plaintiff in error.

William Barrett, R. F. Crick, and L. G. Turner, for defendant in error.

OPINION

SMITH, J.:

The only question necessary to be considered in this case is whether the omission of the clerk to affix his seal to the order of sale renders all the subsequent proceedings void and subjects them to collateral attack, or whether the subsequent proceedings were only voidable, and were so far at least validated by the order of the court confirming the sale as to render them invulnerable to a collateral attack. We hold the latter view.

That the sale was at least voidable at the time and before the confirmation thereof must be fully admitted. The court which made the order of foreclosure and sale, in the absence of any allegation in the petition to the contrary, must be assumed to have had personal jurisdiction of Carter as well as jurisdiction of the subject-matter. In other words, Carter was in court, or, which is the same in effect, had the opportunity to be in court, not only when the order of sale was made but when the motion to confirm the sale was presented. Upon the hearing of the application to confirm the sale the question before the court was, Are the proceedings regular and in conformity with law and equity? (Gen. Stat. 1901, § 4952.)

The order confirming the sale and directing the sheriff to make a deed was an adjudication of all the facts involved in the inquiry, one of which was the issuance of a legal order of sale. In case of a decision adverse to his interest all legal methods of correcting the error were open to him. Should he, then, be allowed to ignore the proceedings of the court, and, years afterward, in a collateral attack, to assert that a fact upon which the order of confirmation was based is false? If the order of confirmation was an adjudication that all the proceedings, including the issuance of the order of sale, were regular and in conformity with law, he cannot in this action be heard to dispute it. In the opinion in an analogous case, Cross v. Knox, 32 Kan. 725, 5 P. 32, it was said:

"The act of the clerk in issuing the order, and the acts of the sheriff under it, were ministerial, and might have been reached by motion to vacate or set aside; but the order of the court confirming the sale was a judicial act, and is such a final order as can only be reached, and if erroneous, corrected, by proceedings in error. . . . We incline to the opinion (but do not decide the question) that a confirmation of the proceedings of a sheriff under an order of sale is a judicial determination that establishes the legality of the order of sale as well as the legality of the sale made under it." (Page 734.)

That the order of sale is a process of the court and should be authenticated by the seal thereof is unquestionable, but in this case, while called the order of sale, it was not the real order of sale; it, in effect, only communicated to the sheriff the order theretofore made by the court, which was the primary authority of the sheriff to sell the land.

This was not an execution sale, in the proper sense of the term, but was a judicial sale. The distinction is illuminated at length in Norton v. Reardon, 67 Kan. 302, 72 P. 861, 100 Am. St. Rep. 459. An excerpt from a quotation therein made, with approval, from section 1 of Freeman on Void Judicial Sales, epitomizes the distinction:

"The chief differences between execution and judicial sales are these: The former are based on a general judgment for so much money, the latter on an order to sell specific property; the former are conducted by an officer of the law in pursuance of the directions of a statute, the latter are made by the agent of a court in pursuance of the directions of the court; in the former the sheriff is the vendor, in the latter, ...