272 P. 130 | Kan. | 1928
The opinion of the court was delivered by
This is an appeal from a judgment of foreclosure in which a judgment in rem was entered against A. R. Lamb for $6,300. The matters in controversy in the appeal are, first, a ruling made upon the motion of defendant Lamb to make the petition of plaintiff more definite and certain; second, a ruling decreeing the period of redemption to be six months instead of eighteen; the overruling of a motion to set aside the sale of property, and the order confirming the sale. These rulings are assigned as error.
From the pleadings, evidence and special findings, the controlling facts appear to be that S. A. Brown owned a tract of ground upon which a hotel had been erected, and that on February 9,1927, Brown agreed to sell the property to W. C. Goodell for $6,000 and to accept in payment a note for that sum secured by a mortgage on the premises. About that time, and before the transfer was completed, Goodell sold it to George W. Williams for the same amount and on
The attack on the petition was that it did not definitely disclose the actual consideration paid in the transfers between Goodell and Williams, in that it did not disclose the amount actually paid by the purchaser, and that the payment actually made had a material bearing on the period of redemption, that is, whether one-third of the purchase price had been paid. It was alleged that the note and mortgage for $6,000 was the amount of the consideration, and the evidence tended to show that to have been the actual consideration. More than that, the conveyance was made by Brown to Williams, and the former testified that the note for $6,000 was given as the full consideration of the purchase price. The court was warranted in finding that one-third of the purchase price had not been paid. It appears that no more than $80 was paid, and hence the redemption was properly limited to the six-months period. (R. S. 60-3466.) We find nothing substantial in this objection.
As to the motion to set aside the sale of the property, a more serious question is presented. The’ notice of the sale was manifestly insufficient. The first notice was published in a weekly newspaper
The judgment will therefore be reversed and the cause remanded for further proceedings.