Ehrsam v. Smith
| Decision Date | 07 April 1900 |
| Docket Number | 11,547 |
| Parties | J. B. EHRSAM v. GUILFORD SMITH et al |
| Court | Kansas Supreme Court |
Decided January, 1900.
Error from Dickinson district court; O. L. MOORE, judge.
Hurd & Hurd, for plaintiff in error.
Garver & Larimer, and T. E. Dewey, for defendants in error.
This was an action by J. B. Ehrsam to enforce his alleged right as a creditor of the J. B. Ehrsam Machine Company, to redeem certain real estate of that corporation previously sold at a judicial sale.
On June 1, 1894, the machine company gave a mortgage to Guilford Smith to secure the payment of a debt of $ 25,000; the mortgage was foreclosed, the decree being entered on February 12, 1897, which, among other things, directed the sale of the mortgaged property at the expiration of six months thereafter, if the personal judgment was not paid, and that the defendants, some of whom were creditors, should "be forever barred from claiming any interest in, title to or lien upon said premises." In pursuance of the decree and after notice, the property was sold by the sheriff on October 4, 1897, to Guilford Smith for $ 5000, and thereafter, on October 23, 1897, the sale was confirmed and the sheriff was ordered to make and deliver a deed to the purchaser, which was accordingly done on December 22, 1897.
After the sale, and on November 8, 1897, J. B. Ehrsam recovered two judgments against the machine company, one for $ 296.75, and the other for $ 2249, and a judgment for a small amount had previously been obtained by him before a justice of the peace. On January 3, 1899, this proceeding to redeem was begun, a previous tender of the amount paid by the purchaser with accrued interest, having been made, but the trial court held that on the facts alleged the action could not be maintained. As will be observed, the mortgage foreclosed was executed after the passage of the redemption law of 1893 (Laws 1893, ch. 109; Gen. Stat. 1897, ch. 95, §§ 471, 472, 521-544; Gen. Stat. 1899, §§ 4742-4769), and the property sold was therefore subject to redemption as the act provides. The trial court, through an oversight or error, adjudged that a sale should be made within six months, a deed made, and that the mortgagor and all persons through it should be barred of any lien on or interest in the property sold. The judgment of the court was carried out, the sale made, and the deed executed, and the question we have is whether a creditor of the mortgagor who obtained judgment subsequently to the foreclosure and sale of the premises has a right to enforce redemption in an action begun more than a year after the sheriff's deed was executed.
That there was error committed by the court in directing the execution and delivery of a deed, instead of a certificate of purchase subject to redemption, will be conceded, but the contention is that the sale and deed were made pursuant to the judgment of a court which had complete jurisdiction of all necessary parties and of the subject-matter, and that such judgment, however erroneous, is conclusive upon all interested parties so long as it remains in force. If the judgment of the court is erroneous simply, and not void, it cannot be collaterally impeached in this proceeding. The court had general jurisdiction of the...
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...cured if it relates to a fact necessarily involved in the subsequent adjudication in the confirmation of slae. (See also Ehrsam . Smith, 61 Kan. 699, 60 P. 740.) The decree or order of confirmation is a final and conclusive adjudication to the same extent as any other other adjudication of ......
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