17 Kan. 613 | Kan. | 1877
Plaintiffs in error, by this proceeding,, seek to reverse the order of the court below confirming the sale of the real estate made by the sheriff in the action.. Upon the hearing of the motion to confirm, the plaintiffs in error interposed their motion to set aside the sale for the reasons —
“ 1st, That the sheriff returned Thomas H. Wills, as the-purchaser at the sale, when in truth and in fact said Wills did not bid upon nor purchase the real estate at the sale, but one H. M. Bradley bid upon and was the purchaser of the property for himself, and not for Wills:
“ 2d, That the attachment proceedings in the suit, in which,, after the judgment, the sale was made, were irregular, and not according to the provisions of law, as one of the persons selected and summoned by the sheriff to make an appraisement of the property attached was not a householder at the time of his. selection, nor at the time of the appraisement under the attachment:
“ 3d, That the real estate was at the date of the attachment,, at the time of the judgment, and on the day of sale, the homestead of plaintiffs in error, and still continues to be their homestead, and is exempt from forced sale under any process-of law; and that the judgment upon which the real estate was sold was not obtained for the payment of any obligation contracted for the purchase of the premises, nor for the erection of improvements thereon, nor was the execution issued to enforce any lien given by the consent of plaintiffs in error.”
The sale was ordered to satisfy a judgment wherein L. T, Stephenson was plaintiff, and James Z. Gapen was the only defendant. An order of attachment was issued and levied upon the land at the commencement of the action. Before the trial of the cause, the said James Z. Gapen moved to dissolve the attachment, assigning many causes, but including two of the grounds contained in the motion to set aside the sale, viz., that the land attached was the debtor’s homestead, and that the appraisement in the attachment-proceedings was irregular, as one of the appraisers was not a householder.
III. The last question to be considered is, whether under the circumstances, the sale should have been set aside upon the motion that the property was the homestead of said James Z. and Myra E. Gapen. Myra E. Gapen was not a party to the action in which the attachment was issued, the judgment rendered, or the sale made. None of her rights could be prejudiced by any judgment, decreej or order of the court to which she was neither a party nor privy. If the farm in controversy is a homestead, in a proper proceeding the wife can be fully heard, and the law will give her a time, and place, and tribunal to establish her legal claims. This court has already held that a judgment rendered against the husband alone is not a lien on the homestead. Morris v. Ward, 5 Kas. 239. The fact that the wife joins her husband in the motion to set aside the sale, does not make her a party to the suit, and we must disregard her appearance in the matter, and consider the case the same as if the motion hád been filed by James Z, Gapen alone. After Gapen had introduced all his evidence to support the motion to discharge the property as a homestead, Stephenson then offered in answer thereto the mo
The order of the court below is affirmed.