Case v. Company

• Decision Date: 09 June 1900
• Docket Number: 11,633
• Citation: 62 Kan. 69,61 P. 406
• Parties: GEORGE A. CASE v. THE CHEROKEE LANYON SPELTER COMPANY et al
• Court: Kansas Supreme Court

61 P. 406

62 Kan. 69

GEORGE A. CASE v. THE CHEROKEE LANYON SPELTER COMPANY et al

No. 11,633

Supreme Court of Kansas

June 9, 1900

Decided July, 1900.

Error from Crawford district court; W. L. SIMONS, judge.

Affirmed.

S. E Cheeseman, J. R. Sapp, and B. S. Gaitskill, for plaintiff in error.

Morris Cliggitt, for defendants in error.

OPINION

DOSTER, C. J.:

This is a proceeding in error from an order refusing to confirm a sale of real estate and from an order sustaining a motion to set aside the sale, and it involves a consideration of some of the provisions of the act of 1893 providing for the redemption of real estate from execution or judicial sale. (Gen. Stat. 1897, ch. 95, art. 22; Gen. Stat. 1899, § 4742, et seq.)

In 1895 the Long Bell Lumber Company recovered a judgment against the Cherokee Mining and Smelting Company. Subsequently it caused the issuance of sale process and the sale of certain real estate belonging to the judgment debtor. At this sale one Edward E. Wells became the purchaser. Soon thereafter the sale was confirmed and the sheriff directed to issue a certificate of purchase in accordance with the act of 1893. Soon after this sale and confirmation the plaintiff in error, George A. Case, recovered a judgment against the Cherokee Mining and Smelting Company, and soon after that time the company named assigned its right of redemption of the land sold under the Long Bell Lumber Company's judgment to one Rollin Steward, and also executed to him a warranty deed therefor. Shortly before the expiration of one year from the time of the before-mentioned sale to Wells in the suit of the Long Bell Lumber Company against the Cherokee Mining and Smelting Company, Rollin Steward, as owner of the right of redemption, redeemed the land from the sale, and soon thereafter he executed a conveyance of such land to the defendant in error herein, The Cherokee Lanyon Spelter Company. Subsequently the plaintiff in error herein, George A. Case, caused an execution to issue on his judgment against the Cherokee Mining and Smelting Company, and caused another sale of the land which had been sold under the previous judgment of the Long Bell Lumber Company, and from which first sale Steward, as stated, had made redemption. At the sale thus procured by Case he became the purchaser of the land. The Cherokee Lanyon Spelter Company, the owner of the conveyance from Steward, moved to set aside the sale to Case, while he in turn moved to confirm it. The motion to set aside was sustained; the motion to confirm denied. From these orders Case has prosecuted error to this court.

The plaintiff in error was a subsequent judgment creditor of the Cherokee Mining and Smelting Company. Under the provisions of the redemption act, a judgment debtor, or his assignee of the right of redemption, is given a preferred right within the first twelve months after the sale to redeem. For the next three months creditors in the order of priority of their liens are allowed the right of redemption. The main proposition of counsel for plaintiff in error is that a purchaser at an execution or judicial sale has, during the period allowed for redemption, only a lien upon the land for the repayment of the purchase-money, and that in this case the redemption of the land by Steward, the assignee of the judgment debtor, from the sale under the prior judgment of the Long Bell Lumber Company, made, as it was, prior to the time when the right of his client to redeem accrued, and which thereby prevented his client's right of redemption, was a simple discharge of the prior purchase-money lien, and left the land subject to the subsequent judgment lien; in other words, that it was a discharge of a lien and not a redemption of land. This is not his language, but it is the point his argument would establish.

The assertion of the claim thus made is preceded by some subsidiary propositions, such as that the redemption act is to be strictly construed, and the rights claimed under it are to be strictly pursued; that the object of the redemption law is to apply the debtor's lands as far as possible to the payment of his debts; that statutory redemption rights are not conferred for the benefit of the prior sale creditor, but for the benefit of the debtor and junior encumbrancers; that the right of Rollin Steward, as assignee of the Cherokee Mining and Smelting Company's right of redemption, became merged in the conveyance of the legal title made to him by such company, etc.

A right to redeem from a sale of real estate is purely statutory. It does not exist at common law. Courts of equity in justifiable cases, may grant in their decrees of sale something akin to the right, but the power thus exercised is apart from the one conferred by the statute under consideration. In the case before us the statute, after authorizing sales...