Falk v. Ferd. Heim Brewing Company

• Decision Date: 09 May 1903
• Docket Number: 13,144
• Parties: ROSINA FALK et al. v. FERD. HEIM BREWING COMPANY
• Court: Kansas Supreme Court

72 P. 531

67 Kan. 131

ROSINA FALK et al. v. FERD.

HEIM BREWING COMPANY

No. 13,144

Supreme Court of Kansas

May 9, 1903

Decided January, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

JUDICIAL SALE--Effect of Reversal of Judgment. Where a sheriff's sale of real estate is made under a special execution based upon two judgments rendered in the same action, brought to foreclose first and second mortgages on such real estate, the fact that the judgment on the inferior mortgage is afterward reversed does not affect the validity of the sale, even where the judgment. plaintiff is the purchaser.

W. S Carroll, for plaintiffs in error.

Moore & Berger, for defendant in error.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

The Ferd. Heim Brewing Company sued Charles Hahn and Rosina and Reinhart Falk on two notes, each secured by a mortgage on the same real estate. One mortgage, for $ 1000, was executed by Hahn alone while he owned the property; the other, for $ 800, by Hahn and the two Falks after the transfer of the property to them. Judgment was rendered on both notes and for the sale of the property under both mortgages. The Falks, by proceedings in error directed solely against the judgment on the second note and mortgage, obtained its reversal on December 4, 1900. (Falk v. Brewing Co., 10 Kan.App. 248, 62 P. 716.) A stay bond was given on October 26, 1899, but the property had already been sold on August 26, 1899, under a special execution based upon both judgments, and bid in by plaintiff at the aggregate amount due on them. This sale was afterward confirmed, and a sheriff's deed was made on September 12, 1901. On October 8, 1901, a writ of assistance was asked against the Falks, they being in possession of the property, and on March 2, 1902, such writ was granted. The Falks now seek the reversal of the order granting the writ of assistance, upon the ground that the sale depends for its validity upon both judgments, and one of them having been reversed, the sale as between the parties is void.

To sustain their contention, plaintiffs in error cite Ferrier v. Deutchman, 111 Ind. 330, 12 N.E. 497; Brown v. McKay, 16 id. 484, and Hutchens v Doe, 3 id. 528. These cases hold that where a sale of real estate is made upon several executions, one of them being based upon a judgment which is void or which is afterward reversed, the sale is invalid. Assuming the correctness of...