52 Kan. 126 | Kan. | 1893
The opinion of the court was delivered by
This proceeding was brought to review the ruling of the district court refusing to set aside a sale of real •estate which had been made in pursuance of an order of that court. The order was made in an action brought to recover upon an indebtedness of $200 due from Anna Dreese to Willis A. Myers, and to foreclose a mortgage given to secure the payment of the indebtedness. Personal service was made upon the defendant, Mrs. Dreese, but she filed1 no answer and made no defense. On May 12,1888, judgment was rendered for the amount, and for a foreclosure of the mortgage; but no execution of the judgment was attempted until March, 1890, when the order of sale mentioned was issued. After appraisement and due notice, a sale of the property — which was a lot in Hays City — was made on April 26, 1889, for more than two-thirds of the appraised value. On the same day, Mrs. Dreese filed her motion to set aside the sale, the principal ground of which was, that the property was a homestead at the time the mortgage was given and foreclosed, occupied by herself and her family, consisting of five children; that she was a married woman, and her husband was still livmg; and that, as the mortgage was not signed by him, and he was not made a party to the action, nor given notice of its pendency, the mortgage was absolutely void, and a sale of the property under it was unwarranted and illegal.
The testimony offered on the hearing showed that the house and lot on which the mortgage was given had been occupied as a homestead by herself and family since before the execution of the mortgage, and that her husband, who was living, had not signed the mortgage or otherwise given his consent to its execution. It appears to have been conceded on the
The claim of Myers that no review can be had because no motion for a new trial was made is not good, for the reason that, upon a hearing of a motion after judgment, a motion for a new trial is not essential to a review. It appears that some of the money borrowed from Myers was used by Mrs. Dreese to pay a balance due upon the lot, and another part was used to pay for lumber previously purchased from another, which had been used in making improvements upon the lot. Neither of these debts, however, was due to Myers, and neither of them constituted a lien against the house and lot. Some time prior to the execution of the mortgage, she purchased and obtained the title to the lot from Martin Allen. There was a balance due Allen upon the lot of $30, and this amount, together with a little interest thereon, was paid by her out of the $200 borrowed from Myers. She had previously purchased a bill of lumber from one Haverman, on which there was a balance due of about $40, and out of the money borrowed she paid him the sum of $32.25. No other claims due for the purchase price of the lot, or for the erection of improvements thereon, are shown to have been paid out of the money borrowed from Myers. If both of these sums had been properly chargeable against the property, or, rather, if it had not been exempt from the payment of both of these, they would still be insufficient in amount to equal the debt
The judgment of the district court will be reversed, and the cause remanded for further proceedings.