80 P. 56 | Kan. | 1905
The opinion of the court was delivered by
D. J. Jones sued Ned Armstead for the possession of a city lot, and recovered a judgment, to reverse which this proceeding is brought. The plaintiff’s title was based upon two sheriff’s deeds, issued in pursuance of an execution sale made upon a judgment rendered against the defendant by a justice of the peace and taken to the district court by transcript. The controversy turns upon the validity of such judgment, sale, and deeds, the objections to which will be considered seriatim.
It is contended that there was no sufficient showing of a service of summons on the execution defendant or of the rendition of a judgment against him. ' The action in the justice’s court was brought upon two notes purporting to be executed by “Ned Olmstead,” by the use of a mark. The summons commanded the officer to whom it was addressed to serve it upon “Ned Almstead.” The return showed a service by the leaving of a copy at the usual residence of “Ned Almstead.” The defendant testified that he never knew of the summons or of the action until after the judgment was rendered and his property was advertised for sale on execution. The constable who served the
The contention is that these proceedings do not show a good service upon, or judgment against, the defendant, whose name is said to be “Ned Armstead,” and who was sued by that name in the ejectment action. The different combinations of letters by which the name of the defendant was sought to be indicated in the proceedings before the justice and in the district court do not, of course, by any approved usage represent precisely the same sounds; but the rule of idem sonans requires only that there be a practical identity of sound, or even, as has been said, so close a similarity that the attentive ear finds difficulty in distinguishing the names when pronounced. (21 A. & E. Encycl. of L. 313.) It is easily conceivable that the defendant’s own pronunciation of his name was such that it might be difficult to say what should be the proper spelling. The testimony of the constable that the “Ned Armstead” who is a party to this litigation was the very person upon whom he served the justice’s summons, by leaving a copy of it at his place of residence, if accepted as true, removes any doubt that might otherwise exist as to the sufficiency of the service, or as to the identity of the defendant in the ejectment action with the defendant in the case before the justice of the peace.
The judgment referred to was rendered in 1894. The real property in question appears to have been sold subject to an existing mortgage. No appraisement was made and there was no investigation or determination of the amount of the mortgage. In 1887 section 448 of the civil code was amended by adding a provision that lands encumbered by mortgage “may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement.” (Laws 1887, ch. 177.) In 1893, as a
The execution sale referred to was made September 10, 1894, by Thomas Evans, who was sheriff at that time. On April 9, 1896, Dan Gaughan, who had in the meantime succeeded to the office of sheriff, executed a deed upon it. This deed, among other inaccuracies, recited that the sale was made upon a judgment rendered in the district court commanding the sale of the real estate in controversy, and gave the defendant’s name as “Ned Armistead.” In October, 1903, with the purpose of correcting the mistakes of the first deed, Gaughan executed a second sheriff’s deed. The first deed is objected to on account of its misrecitals, and both deeds are objected to upon the
This, then, is the situation presented: At the time of the execution of this deed the grantee had bought the property at a valid execution sale; the sale had been confirmed; the period of redemption had expired; the purchaser was entitled to a deed; the statute did not in terms require the deed to show the character of the judgment on which it was based; the sheriff made a deed purporting to convey the property, but misdescribed the judgment. Whether or not this deed was valid for all purposes and against any
The statute in which this language occurs is modeled upon that of Iowa, and the section cited is almost a literal transcript of section 3124 of McLain’s Annotated Statutes of Iowa (1882), from which it is manifestly taken. Prior to its adoption here the Iowa supreme court had construed the words “the sheriff” as used in this section to refer to the person holding that office at the time the certificate is produced and the deed demanded. (Conger v. Converse, 9 Iowa, 554.) Following this construction, we hold that Gaughan was in April, 1896, the proper person to make a deed in pursuance of the sale made in September, 1894. From these conclusions it results that plaintiff was entitled to recover irrespective of the second deed, and the effect of that need not be considered. The judgment is affirmed.
