Needham v. Young, 45732

• Decision Date: 13 June 1970
• Docket Number: No. 45732,45732
• Citation: 470 P.2d 762,205 Kan. 603
• Parties: Leslie L. NEEDHAM, Appellee and Cross-Appellant, v. Stanley E. YOUNG and Geraldine M. Young, Appellants.
• Court: Kansas Supreme Court

Page 762

470 P.2d 762

205 Kan. 603

Leslie L. NEEDHAM, Appellee and Cross-Appellant, v. Stanley E. YOUNG and Geraldine M. Young, Appellants.

No. 45732.

Supreme Court of Kansas.

June 13, 1970.

Syllabus by the Court

1. Executions shall be issued only from the court in which the judgment is rendered. (K.S.A. 60-2202)

2. When real estate is sold on execution and a period of redemption fixed under the provisions of K.S.A. 60-2414, a motion to set aside the sale proceedings is within a reasonable time as required by K.S.A. 60-260(b)(6) if it is filed during the period of redemption set by the court.

3. When a person moves a court to vacate a sale of real estate on execution he submits himself to the jurisdiction of that court and the court has jurisdiction not only to grant the relief prayed for but also to adjust the equities between the parties.

4. Under the facts and circumstances more fully set out in the opinion, when real estate is sold under a general execution issued from a court in a county other than where the judgment was rendered it is held: (1) The sale proceedings were properly vacated and set aside, and (2) The district court had jurisdiction to and did properly adjust the equities between the parties by requiring certain reimbursements to be made.

Van Smith, Jetmore, argued the cause and was on the brief for appellants.

Rae E. Batt, of Batt & Meeks, Kinsley, argued the cause and was on the brief for appellee and cross-appellant.

FROMME, Justice.

This appeal and cross-appeal is from an order of the district court vacating and setting aside an execution sale of real estate in Hodgeman county.

The judgment debtors appeal from that portion of the order which requires them to repay to the purchaser at the sale the amount paid by the purchaser on a prior outstanding mortgage. The judgment debtors, Stanley E. Young and Geraldine M. Young, are the owners of the land. They were the defendants below and are the appellants herein. We will refer to them as the defendants.

The judgment creditor cross-appeals and contends generally that the court erred in vacating the sale proceedings. The judgment creditor, Leslie L. Needham, was the purchaser at the sale. He was the plaintiff below and is the appellee and cross-appellant herein. We will refer to him as the plaintiff or the purchaser.

A recitation of the events leading to the execution sale is necessary to understand the contentions of the parties.

The plaintiff obtained a judgment against the defendants in the district court of Edwards county. Nine months later he caused an attested copy of the journal entry of judgment to be filed in the office of the clerk of the district court of Hodgman county. The filing procedure is authorized by K.S.A. 60-2202 and perfects the judgment lien on any real estate owned by the judgment debtor in the county where the filing occurs.

The defendants owned a half section of land in Hodgeman county. On the day the journal entry was filed a general execution was issued by the clerk to the sheriff of Hodgeman county. Pursuant to the general command of the execution the sheriff levied upon the defendants' land. The real estate was advertised and sold at the courthouse in Hodgeman county. The plaintiff who had obtained the original judgment against the defendants in Edwards county was the successful bidder at the sheriff's sale. All subsequent proceedings referred to herein were held in the district court of Hodgeman county.

The sheriff filed his return on the execution sale with the clerk of the district court. The return shows the land was sold to plaintiff for $100,000 subject to mortgage liens of record. The record on appeal indicates the plaintiff paid only $30,102.88 cash into court and then moved the court to confirm the sale. We assume this was the amount of the defendants' equity in the land above the amount of the judgment ($4,597.77) and the mortgage indebtedness.

On November 8, 1967, the district court confirmed the sale and fixed the period of redemption at eighteen months. The decree of confirmation stated the defendants could redeem the land by paying $30,102.88 with interest plus the amount of the judgment lien and costs. A certificate of purchase was issued to the plaintiff.

On December 1, 1967, the defendants entered an appearance in the district court of Hodgeman county by filing a motion to set aside the sale. They asked the court to vacate the sale proceedings on the ground the sale price was inadequate and on the further ground the entire sale price ($100,000) had not been paid into court. This motion was denied on December 6 after oral arguments. In denying the motion the court ordered the plaintiff to pay the outstanding mortgage indebtedness. The order further provided in event of redemption any payments of principal and interest made on the mortgage should be repaid to plaintiff.

In February 1968 the defendants filed a second motion asking the court to require the plaintiff to pay the full amount of his bid ($100,000) into court. The motion was denied.

On July 18, 1968, the defendants filed a third motion to vacate and set aside the sale proceedings for the reason the execution was wrongfully issued in Hodgeman county in violation of the express terms of K.S.A. 60-2202. This statute in pertinent part reads:

'* * * Executions shall be issued only from the court in which the judgment is rendered.'

While this motion was pending a mortgage payment came due. The plaintiff had previously paid $8,868.91 to the clerk of the court to cover this payment. The district court at the request of the plaintiff ordered the clerk to pay this sum to the mortgagee bank. The payment was made and the bank filed a receipt for the payment with the clerk.

Before the third motion was heard the defendants paid the judgment against them in the district court of Edwards county.

The third motion was heard.

The district court of Hodgeman county entered an order vacating and setting aside the sale proceedings for the reason the execution had been wrongfully issued in violation of the provisions of K.S.A. 60-2202. It had been issued in Hodgeman county. The judgment had been rendered in Edwards county. In addition to setting the sale aside the court directed the clerk to refund to plaintiff the $30,102.88 which sum had been paid into court on the sale price. This refund was ordered without interest. The court further ordered the defendants to reimburse the plaintiff for the mortgage payment by paying into court the sum of $8,868.91 with interest from the date the mortgage payment was made to the mortgagee bank. Both the appeal and the cross-appeal stem from this order.

We will examine the contentions of the plaintiff first. He argues the court erred in vacating the sale for the reason defendants' motion was not timely made.

The sale was held on October 17, 1967. The order vacating the sale was entered December 4, 1968. This was less than fourteen months after the sale and well within the eighteen month period of redemption set by the court.

K.S.A.60-260(b) authorizes a court on motion and upon such terms as are just to relieve a party from a final judgment, order or proceeding. The bases for such a motion are listed in the statute. The sixth basis listed is for any reason justifying relief from the operation of the judgment, order or proceeding. The time specified in the statute for filing such a motion is 'a reasonable time'. A reasonable time is not a precise period such as the one year limitation specifically placed on motions filed for reasons (1), (2) and (3) in this statute. Judicial discretion is indicated when the time specified by statute merely has to be reasonable.

When real estate is sold on execution and a period of redemption fixed under the provisions of K.S.A. 60-2414 a motion to set aside the sale proceedings is within a reasonable time as required by K.S.A. 60-260(b)(6) if it is filed during the period of redemption set by the court. To hold otherwise would be to disregare the purposes of the redemption statute which is to prevent hardship and inequity.

The plaintiff contends the defendants were estopped to question the validity of the sale and cites Hazel v. Lyden, 51 Kan. 233, 32 P. 898. That case is readily distinguishable on the facts. In Hazel v. Lyden, supra, the owner lived within two miles of the land, was present at the sale and made no protest. He gave the purchaser possession of the land quietly and without objection. He accepted the proceeds of the sale. The validity of the sale was not attacked until 12 years after the sale and by that time the purchaser had made valuable improvements on the land.

In the present case the defendants appeared and moved the court to set aside the proceedings wthin a month after the order of confirmation was entered. They did not accept the proceeds of the sale. The order of confirmation was set aside before the period of redemption had...