35 Kan. 577 | Kan. | 1886
The opinion of the court was delivered by
This was an. action brought in the district court of Shawnee county by Andrew J. Huntoon against the Capital Bank of Topeka, Arthur Quick, the Topeka Bank, (formerly known as the Topeka Bank aud Savings Institution,) John R. Mulvane, Joseph Black, Willis Norton, and N. C. McFarland, to set aside a sheriff’s sale, and for other relief. The case was tried before the Court and a jury, and both the court and the jury made special findings of fact, and the court made one conclusion of law, and upon such findings and conclusion the court rendered judgment in favor of the plaintiff and against the defendants. The defendants bring the case to this court.
Among the admitted facts of the case are the following: In 1873, Joel Huntoon & Son were largely indebted to various persons and corporations, among which were the Capital Bank, the Topeka Bank, the Mastín Bank, Arthur
On March 22, 1876, an order of sale was issued and the aforesaid lots were appraised, and on May 8, 1876, the order of sale was returned — no sale having been made, for want of bidders. On July 22,1876, an alias order of sale was issued, and on August 31, 1876, a like return was made. On September 2, 1876, a third order of sale was issued, and the old appraisement was set aside and a new appraisement was ordered to be made, and on September 14,1876, was in fact made, and afterward the order of sale was returned as the others had been before—no sale having been made, for want of bidders. On September 19, 1879, the Topeka Bank applied to be made a party defendant to the aforesaid action with leave to answer, which application was granted; and it filed its answer setting up its judgment and claiming priority over the other judgment creditors. In the mean time the Capital Bank and the Mastín Bank had ceased to do business, and N. C. McFarland and Willis Norton had become the owners of the Capital Bank judgment, and Arthur Quick, John R. Mulvane and Willis Norton had become the owners of the Mastín Bank judgment. On September 4, 1880, a fourth order of sale was issued, and the sheriff proceeded to advertise and sell the property under the previous appraisement of September 14, 1876, and on October 18, 1880, sold all the foregoing lots to Arthur Quick. On December 18, 1880, the sale was confirmed and the priorities were again determined; and it was ordered that the proceeds of the sale, after deducting the costs, should be ap
Upon the foregoing facts and some others, the court below found as a conclusion of law that the sheriff’s sale was “void, and should be held for naught.” The court, however, did not render any judgment setting aside the sale. The judgment that was in fact rendered was that the sheriff’s deed and the deeds from Quick to the other judgment creditors conveying the lots which such judgment creditors still hold and have not yet sold .or disposed of, should, as to such lots, be set aside and held for naught, and the title to such lots should be reinvested and replaced in Joel Huntoon, subject to the payment of his debts for which Andrew J. Huntoon is surety ; and the sheriff’s deed- and the deeds to such of the lots as had been sold
On the other hand, the plaintiffs in error, defendants below,
We shall now proceed to consider the various questions presented to us by the parties to this action, but we shall not consider them in the order as heretofore stated.
I. The plaintiffs in error, defendants below, claim that the defendant in error, plaintiff below, has mistaken his remedy; that by his laches he has lost his proper remedies, and that he is now pursuing a wrong one. The property in this case was sold on October 18, 1880.' It had previously been advertised for sale, and the plaintiff in this action had full, complete and actual notice of the sale. He knew that the property was to be sold on that day; and yet he made no appearance at the sale and did not in any manner resist the same. The sale was not confirmed until December 18,1880, just two months after the sale; and yet the plaintiff did not appear at that time nor at any other time, to resist the confirmation of the sale, or to make any motion to have it set aside. The sheriff’s deed was not executed until March 1, 1881, more
II. The plaintiffs in error, defendants below, also claim that the subject-matter of this action has been finally and conclusively determined by the order of the district court confirming the sheriff’s sale, and that the entire question as to whether such sale was formal or informal, legal or illegal, valid or invalid, has been finally settled and is now res adjudicata. We think it is true that, with respect to some of the questions involved in this case, or in any case, the confirmation of a-sheriff’s sale is a final and conclusive adjudication. (Paine v. Spratley, 5 Kas. 525; Bowman v. Cockrill, 6 id. 311; Cross v. Knox, 32 id. 725; Dickens v. Crane, 33 id. 344; Pritchard v. Madren, 31 id. 39-49, et seq.) But with respect to many other questions, the confirmation of a sheriff’s sale cannot be regarded as conclusive or as res adjudicata. (Koehler v. Ball, 2 Kas. 161; White-Crow v. White-Wing, 3 id. 276; Benz v. Hines, 3 id. 390; Treptow v. Buse, 10 id. 170, 179, 180; Rice v. Poynter, 15 id. 264, 268; Harrison v. Andrews, 18 id. 535; Halsey v. Van Vliet, 27 id. 477.) We think the substance of the foregoing decisions is that all. mere irregularities in the proceedings connected with a sheriff’s sale are cured by the order of the court, made some considerable time afterward, as in thisUase, confirming the sale. (See also Rorer on Judicial
III. There was no unlawful or fraudulent combination among the judgment creditors or their representatives to prevent competition at the sheriff’s sale. The agreement between
IV. The sale was made upon an appraisement of the property which had been made more than four years pi’ior to the time of the sale, and thex*efox’e and for this reason it is claimed that the sale is void. We think diffex’ently. The propei’ty had been offered only once for sale under this appraisement, and there is no statute axxthox’izing another appraisement to be made until after the property had been offered for sale a second time under any particular appx’aisexnent. (Civil Code, §468.) Of course the sale should follow vexy soon after the appraisement, for otherwise the property might be worth vastly more at the time of the sale than it was at the time of the appraisenxent. Such was the fact in this present case. Ixx this con
V. It is also claimed that the sale is void for the reason that the property was sold at a grossly inadequate price. Such a ground taken alone is seldom if ever sufficient to authorize the setting aside of a sheriff's, sale. (Moore v. Pye, 10 Kas. 246; Dewey v. Linscott, 20 id. 684; Northrop v. Cooper, 23 id. 433, 441; Savings Bank v. Marsh, 31 id. 771, 773; McGeorge v. Sease, 32 id. 387, 390, 391.) Though that ground with others is sometimes sufficient. (Dewey v. Linscott, 20 Kas. 684; Weir v. Ins. Co., 32 id. 325; Freeman on Executions, § 309, and cases there cited.) All the lots except eight, and there were about 119 in all, were sold for more than two-thirds of their appraised value. We shall have more to say with regard to these eight lots hereafter. With respect to those lots which were sold for more than two-thirds of their appraised value, we think the sale cannot for mere inadequacy of price be set aside in this proceeding. We shall have more to say hereafter with respect to this point, in connection with the other points.
VI. It is further claimed that eight of the lots were sold for less than two-thirds of their appraised value, and therefore and for this reason that the sale is void. There was no express waiver of appraisement in this case, and no implied waiver unless the facts of this case show it. Undoubtedly the sale of these eight lots would have been set aside if a mo
It is also claimed that the sale should be held void because J. E. Mulvane, who partially represented two of the judgment creditors, held tax titles on some of the lots at the time of the sale. We fail to perceive any sufficient ground for this point, and of course it must be overruled.
VII. It is also claimed that the sale is void for the reason that Arthur Quick’s judgment had been paid prior to the sale. Now the jury found that such judgment had been paid, and the court below followed such finding and made a similar finding itself, and yet it would seem to us that the preponderance of the evidence is on the other side. From sometime in October, 1876, up to February, 1877, conversations were had between Quick and Joel Huntoon from which it is claimed on the part of the Huntoons that the judgment was paid, and the testimony of Joel Huntoon, corroborated in part by F. E. Huntoon, his son, tends to sustain such claim, and in the absence of other pi’oof is amply sufficient to sustain the same; while, on the other hand, Arthur Quick testified on the trial that the judgment had never been paid. The court and jury found that such a payment had been made in February, 1877. The supposed payment was as follows: In 1872, which was prior to the time when Huntoon & Son became embarrassed, Joel Huntoon sold four lots to Abraham Warren, on credit, and entered into a written contract with Warren to convey such lots to Warren whenever the purchase-price therefor should be paid. On February 13, 1877, Warren assigned this contract to Quick, and Quick took possession of the property. Afterward, Quick sold his interest in' the lots to George M. Hammel; and it is now claimed by the Huntoons that Joel Huntoon paid Quick’s judgment by releasing to Quick the purchase-price still remaining due on these lots. There is no writing, however, that shows that such judgment has ever been -paid. No deed or written transfer of the lots has ever
Now, notwithstanding all these facts and circumstances, which tend to disprove the findings of the court below and the jury that the judgment in favor of Quick had been previously paid, still there was sufficient evidence to sustain the finding of the court and jury; and we shall therefore decide this case upon the theory that Quick’s judgment had in fact been paid prior to the sheriff’s sale. This, however, cannot materially affect the substantial rights of the other judgment creditors. They must not suffer because of the supposed fraud of Quick. They had no knowledge that the judgment was paid. Joel Huntoon & Son had. No satisfaction of Quick’s judgment had ever been entered of record to give them notice, yet Joel Huntoon & Son hád knowledge of such payment. No notice of the payment had ever been given by the Huntoons or by anyone else to the judgment creditors; and there was no written evidence in existence tending to show that Quick’s judgment had ever been paid; and even Quick himself did not believe that it had been paid. Why did not the Huntoons protect themselves aud the judgment creditors against Quick’s judgment, if he committed a fraud? The Huntoons could have appeared in court at the time of the confirmation
VIII. It is also claimed that the Mastín Bank judgment was dormant at the time of the sale, but this is not true; and upon this point the findings of the court below are against the plaintiff below, defendant in error. It is true that no execution had been issued on the Mastín Bank- judgment for more than five years prior to the date of the execution upon which the property in this case was sold; but the Mastín Bank was a party to the action brought by the Capital Bank against the Huntoons and their judgment creditors within less than five years after the Mastín Bank judgment was rendered, and therefore such judgment was not dormant at the time of the sale. (Kothman v. Skaggs, 29 Kas. 5, 17, 18.)
IX. It is further claimed that the Topeka Bank was not a party to the Capital Bank suit until after the judgment of February 12, 1876, subjecting the lots to the payment of the judgment creditors’ claims, had been rendered. This claim will not necessarily defeat or avoid the sheriff’s sale, but at most can only have the effect of preventing the Topeka Bank from participating in the distribution of the proceeds of the sheriff’s sale. We do not think that it can even have this effect. From anything appearing in the case, the right of the Topeka Bank to participate in such proceeds was equal to the rights of the most favored of the other judgment creditors, and the decision of the court below was that it had the right to so participate; and none of the judgment creditors are complaining. It can make no difference to the Huntoons whether
X. Having considered separately all the points made by the defendant in error, plaintiff below, we shall now proceed to consider them collectively; for collectively they make a much stronger case in his favor than they do when considered separately. The lots were in fact sold for a grossly inadequate price—only about one-fourth of their actual cash value; and eight of them were sold, in violation of law, at less than two-thirds of their appraised value; and the appraisement itself had been made more than four years prior to the sale, and at a time when the price of the property was very low. 'All were sold to one individual, Arthur Quick, who was the agent of all the judgment creditors; and but few bids were made except such as were made by him;. and probably the arrangement among the judgment creditors that he should bid for them had a tendency to prevent their bidding for themselves; and the sale was made in part to pay a judgment which had previously been paid. Now probably, while not one of these things would in and of itself be considered as sufficient to render the sale as to all the lots void, or require that the sale should be set aside in this action as to all the lots, yet, taking all these things together, we are inclined to think that they are sufficient to authorize the setting aside of the sale as to all the lots which still remain in the hands of the judgment creditors and have not been sold or transferred by them to innocent purchasers. None of the aforesaid eight lots have passed out of the hauds of the judgment creditors. All that any one of the judgment creditors is really entitled to receive or have is the amount of his or its judgment, with interest. Anything more is injustice. And if the sale in the present case is to be sustained and upheld, the judgment creditors will get very much more than their judgments and interest. On the other hand, the judgment debtors are entitled to a fair and reasonable compensation for their lots. This they have not obtained by the sale. As they pay interest on the judgments
XI. If it be asked, why should not the' sale be wholly set aside? it may be answered that it is certainly very doubtful, under the circumstances of this case and in this proceeding, whether the sale should be set aside at all or to any extent, except as to the eight lots which were sold for less than two-thirds of their appraised value. Huntoon, the defendant in error, plaintiff below, had full knowledge of the sale, yet he did not resist the sale or its confirmation, or the execution of the sheriff’s deed. He made no motion to set aside the sale, nor did he ever question the regularity or the validity of the sale, or the confirmation thereof, or the sheriff’s deed, either in the district court or in the supreme court, or indeed in any court, until he commenced this' action in the district court more than a year after the sale and a long time after the confirmation and the execution of the sheriff’s deed and the execution of the deeds from Quick to the judgment creditors. Huntoon has been guilty of laches, and yet he now appeals to a court of equity to obtain what he might have obtained in the ordinary course of law if he had exercised proper diligence. We think too many complications have arisen by reason of his laches and negligence, to grant him all that he now asks. (See the authorities heretofore cited, and especially Prather v. Hill, 36 Ill. 402; Noyes v. True, 23 id. 503; Van
XII. And in setting aside the sale as to the lots remaining in the hands of the judgment créditors, justice and equity should be done to them. A party who seeks equity should be willing to concede equity to others. It does not appear that the judgment creditors have made any improvements on any of the lots purchased by them, but it does appear that they have paid taxes thereon; and these taxes should be provided for. The order setting aside the sheriff’s sale, if such' an order be made, should be upon the condition that all taxes which have been paid by the judgment creditors on the lots which are still in their hands shall be refunded to them before their judgments shall be considered as satisfied. If the judgments are not paid without sale, and the lots are again sold, then, after paying the costs, these taxes should be first
XIII. We suppose a part of a record will generally prove what it purports to prove, but as was said in the case of Haynes v. Cowen, 15 Kas. 637, 641, 642:
“It cannot prove more than it purports to prove. No liberal presumptions can be entertained or resorted to for the purpose of supplying omissions, aiding deficiencies or extending the import of its language.. It is only when the whole of the record is introduced in evidence that liberal presumptions can be invoked to aid the record.”
We think no material error was committed in permitting portions of the record of the case of the Capital Bank against the Huntoons and the judgment creditors to be introduced in evidence. But evidently these portions of the record failed to prove much that the record would have proved if the entire record had been introduced in evidence. For this reason the nineteenth finding of the court below is hardly sustained by sufficient evidence, though really no point has been made in this court upon that finding.
This case will be remanded to the court below, with the order that the judgment rendered therein be modified, and for further proceedings in accordance with the views expressed in this opinion.