Galbreath v. Drought

29 Kan. 711 | Kan. | 1883

The opinion of the court was delivered by

Horton, C. J.:

While the prayer of the petition filed in this case is to the effect that the judgment rendered in the district court of Leavenworth county, on the 6th day of May, 1874, in favor of F. C. Eames, against E. S. W. Drought, and now alleged to be owned by the plaintiff, may be adjudged a lien upon the lands of the defendant in Wyandotte county, not exempt from sale upon execution, the principal object of the action was to vacate the order of the district court of Leavenworth county, of the date of April 22d, 1881, confirming the sheriff's sale of real estate made July 13th, 1874. The objections to that confirmation recited, are that it was made without notice to the opposite party, and no one appeared to oppose the same; further, that on the 13th day of July, 1874, when Eames bid off the premises at the sheriff's sale, one David Schwartz was the owner of two several certificates of tax sales upon the land for taxes assessed against it, and that on the 17th day of June, 1875, the county clerk of Leavenworth county executed to the said Schwartz two sev- . eral tax deeds thereon, which said tax deeds were recorded ■September 24th, 1881.

In the first place, we do not think that the orders and judgments of the district court of Leavenworth county could be corrected in this manner by the district court of Wyandotte county; nor do we think the district court of Wyandotte county could, in proceedings of. this character, declare the orders and judgments of the district court in the action of Eames against Drought, irregular or Void.' The district court of Leavenworth county had jurisdiction of the subject-matter of the action, and of the parties litigant therein, and however irregular or erroneous its proceedings may be, no district court of any other county, for supposed irregularities or erroneous rulings or inequitable conclusions can declare its order and judgment to be void, or perpetually enjoin the same. The only way to correct the errors of the district court of Leavenworth county, if any there be, is to apply to that court or this court, by petition in error. (Meixell v. Kirkpatrick, 28 Kas. 315.)

The order of confirmation of April 22d, 1881, was not void for want of notice to Eames or his assignee. A sale of real estate may be confirmed at any time after the sheriff has made his return to the execution or order of sale, and on the motion of any person interested therein, or on the court’s own motion, and with or without the consent of the sheriff; and the confirmation of the sale relates back to the date thereof. (Code, §458; Ferguson v. Tutt, 8 Kas. 370; Johnson v. Lindsay, 27 Kas. 514; Baker v. Hall, ante, p. 617.)

According to the petition, the delay in asking for the order of confirmation was the result of the negligence of Eames, or his assignee, F. W. Perkins. For this delay Drought was not responsible. As Drought paid all the costs, and as the original judgment was for the sum of $292.22 only, the sum of $320 bid for the land, fully equaled the judgment. It is contended, however, that on account of the tax deeds of the date of June 17th, 1875, recorded September 24th, 1881, Eames was not bound by his bid, as the tax liens were sufficient grounds for releasing him therefrom. Further, as Drought had no title to the real estate described in the petition at the date of confirmation, plaintiff is entitled to have that order adjudged void. Not so. Earned was the.mortgagee, and might have paid the taxes upon the premises, or redeemed the land so sold for taxes, at any time before his judgment; and the taxes so paid might have been included in the judgment rendered on the mortgage. ( Gen. Stat. 1868, ch. 107, §135.) Further than this, if he had not redeemed before judgment, as the tax liens had not ripened into tax deeds on the day of sale, and for many months thereafter, he might have obtained a confirmation of the sale at the term of court following his purchase, and had the sheriff directed to satisfy all tax liens from the proceeds of the land. (Gen. Stat. 1868, ch. 107, §40.) The judgment and interest up to the day of sale were less than $300; the amount bid for the land was $320. The amount of taxes due at the date of sale is not set forth in the petition, and for aught that appears therein, the proceeds of the land may have been sufficient to. discharge the taxes and penalties, and also the judgment other than the costs.

The judgment of the district court sustaining the demurrer will be affirmed.

All the Justices concurring.