Catlin v. William Deering & Company

• Court: Kansas Supreme Court
• Writing for the Court: MASON, J.:
• Citation: Catlin v. William Deering & Company, 170 P. 396, 102 Kan. 256 (Kan. 1918)
• Decision Date: 12 January 1918
• Docket Number: 21,192
• Parties: MINERVA CATLIN, Appellant, v. WILLIAM DEERING & COMPANY et al., Appellees

170 P. 396

102 Kan. 256

MINERVA CATLIN, Appellant, v. WILLIAM DEERING & COMPANY et al., Appellees

No. 21,192

Supreme Court of Kansas

January 12, 1918

Decided January, 1918.

Appeal from Barber district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MORTGAGE FORECLOSURE--Irregularities in Sheriff's Sale--Sale Confirmed--Sheriff's Deed Not Open to Attack. Mere irregularities in the conduct of a sheriff's sale of real estate, such as the omission to cause an appraisement where that is required, or the failure to name an hour in the notice of the sale, can afford no basis for an attack upon the sheriff's deed after a decree of confirmation has been rendered from which no appeal has been taken.

2. SAME -- Sheriff's Sale -- Valid Order of Sale -- Void Execution. A sheriff's sale of real estate made under a valid order of sale and a void execution is not a nullity and after it has been confirmed and the decree of confirmation has become final the title of the purchaser is not open to attack on the ground of the invalidity of the execution.

3. SAME--Sheriff's Deed--Title of Grantee Not Open to Attack. Where a sheriff's sale of real estate, made under an order of sale based on the foreclosure of a mortgage, and also under an execution, has been confirmed, and after the expiration of the period of redemption a deed has been executed, the title of the grantee is not open to attack on the ground that the land sold was occupied as a homestead and was therefore exempt from sale on a general execution.

G. M. Martin, of Medicine Lodge, for the appellant.

A. L. Noble, of Winfield, J. N. Tincher, and Seward I. Field, both of Medicine Lodge, for the appellees.

OPINION

MASON, J.:

On December 29, 1915, Minerva Catlin brought an action to set aside a sheriff's deed and all the proceedings on which it was based. She was denied relief, and appeals.

She was formerly the owner of the land involved, which is situated in Barber county. A mortgage upon it was foreclosed, and on December 22, 1913, the property was sold by the sheriff of that county under an order of sale based on the decree in the foreclosure case, and also under a purported execution issued by the clerk of the district court of that county, but based upon a judgment rendered against Mrs. Catlin in Kingman county. The grounds upon which the plaintiff asks to have the deed set aside are: (a) that the sale was made without appraisement; (b) that the notice of the sale failed to state the time of day at which it would be held; (c) that the execution was a nullity because it was not issued out of the court where the judgment was rendered; and (d) that the property was occupied as a homestead and was therefore exempt from sale on a general execution.

1. The statute no longer requires an appraisement where land is sold on execution. (Armstead v. Jones, 71 Kan. 142, 80 P. 56; Insurance Co. v. Carra, 101 Kan. 352, 166 P. 233.) Moreover, any omission in that regard, as well as any defect in the notice of sale, is now immaterial, because a confirmation has been had and no appeal has been taken therefrom. That sets at rest all disputes of fact or law which are involved therein, save such as go to the question of jurisdiction. (Carter v. Hyatt, 76 Kan. 304, 91 P. 61; Clark v. Tandy, 101 Kan. 328, 167 P. 1039.)

2. An attested copy of the journal entry of the Kingman county judgment was filed in the office of the clerk of the district court of Barber county. This made the judgment a lien upon real estate of the debtor in that county, but an execution...