The opinion of the court was delivered by
Brewer, J.:
The question in this case arises on the confirmation of a sale. The property sold was an updividedthird interest in certain lots in the town of Beloit, which from the numbers were apparently separate, but which were sold in gross. A motion to set the sale aside on this account was overruled, and the sale confirmed. Such a sale has been decided by this court to be irregular and voidable, and on that account may be set aside on motion of the judgment-debtor. Johnson v. Hovey, 9 Kan., 61" court="Kan." date_filed="1872-01-15" href="https://app.midpage.ai/document/johnson-v-hovey-7882942?utm_source=webapp" opinion_id="7882942">9 Kas., 61. Counsel for defendant in error claims that this is not an arbitrary rule; that hence *279the. reason of the rule, and therefore the rule itself, fails. The reason is, that when sold separately the property will probably realize more than when sold in mass. This it is claimed may be true when the debtor owns the entire interest in the lots, but is not true when he only owns a small undivided interest therein. In such a case it is said no man would care to buy, unless he bought an interest in enough lots to give him, on partition with the owners of the other interests therein, an entire lot. Hence he would not care to purchase an interest in a single lot, for fear he would be compelled to pay unduly for an interest in the succeeding lot or lots. This reasoning we think is unsound. 'It assumes a state of facts which is likely not to exist, as to exist, and of whose existence or non-existence in this case we are not advised, that is, that the remaining interests in all the lots are owned by the same parties; for if the other interests in each lot is owned by a different party, each lot would have to be partitioned separately. So also in such case, the most interested bidders would be little encouraged to bid. A man who owned two-thirds of one lot might be very anxious to buy the other third if he could buy that separately, and at the same time very unwilling to buy the undivided-third of a dozen other lots in order to secure the third of that one. We do not mean to hold that the rule is arbitrary, and to be enforced in every case. Circumstances may often exist to make it for the interest of the debtor, and to justify and uphold a sale in bulk of separate lots. But nothing appears here outside of the record, and prima facie every such sale is irregular, and may be set aside by the debtor on motion, if such motion be made before the confirmation.
The order of the court will be reversed, and the case remanded with instructions to set aside the sale.
All the Justices concurring.