Adams v. Devalley

40 Kan. 486 | Kan. | 1889

Opinion by

ClogstON, C.:

No reason is given by the court for setting aside the confirmation of sale, except that the sheriff had failed to collect the purchase-money. The proceedings, including the appraisement, publication and sale, were irregular, and perhaps void; but it is insisted that if this be true, the irregularity was cured by the waiver of Joseph Adams, the defendant; and, all irregularities having been waived, that it became the duty of the court to approve the sale, and to confirm it. This would perhaps be true had the waiver been signed by Adams and his wife. Mrs. Adams, not having signed the waiver, is not bound thereby. She had served a notice upon the sheriff that she claimed the property as her homestead. This doubtless was the reason why the sale had not been completed by the purchaser and the money paid to the sheriff. The purchaser found that the property was not subject to levy and sale, and doubtless for that reason he paid no part of the purchase-money to the sheriff. This, perhaps, was shown, to the court by the sheriff, although the record is silent upon the question; but we may fairly presume that the court was fully informed of the condition of this property, and for that reason permitted the sheriff to amend his return by showing that the purchase-money had not been paid, and then set aside the sale. The confirmation or setting aside of a sale is largely in the discretion of the court. Where the proceedings are regular, it is the duty of the court to confirm a sale, but in proceedings of this kind, where they are shown to have been irregular, and also where it is shown that the wife of the defendant claimed the property as her homestead, it would be inequitable to require the confirmation of the sale, even though the irregularities were waived by the defendant. The effect of confirmation would be that the purchaser would be compelled to pay the purchase-price, and the judgment being for only $17 and the costs, it would still leave a large sum to be paid to the judgment debtor. After receiving this sum the wife could still claim that the levy and sale were void because the property was her homestead, and the purchaser would get nothing by reason of his purchase.

Under the circumstances we think the court committed no error in setting aside the confirmation and the sale. The defendant was not injured by the transaction; no costs are taxed to him.

It is therefore recommended that the judgment of the court below be affirmed.

By the Court: It is so ordered.

All the Justices concurring.