78 P. 852 | Kan. | 1904
The opinion of the court was delivered by
The assignment of error in this case is the granting of the motion of defendants below for judgment upon the pleadings, and rendering
The claim, in short, is that, by reason of his sentence and the imprisonment thereunder at the time of' the proceedings subsequent to the rendition of the-judgment in the foreclosure case, such proceedings were void and ineffectual to transfer the title of the-land in controversy from Gray to the purchaser at the sheriff’s sale, there having been no revivor of the-foreclosure action against Gray.
“Whenever any person shall be imprisoned under a sentence of imprisonment for life, his estate, property and effects shall be administered and disposed of in all respects as if he were naturally dead.
“Whenever any person shall be imprisoned in the penitentiary for a term less than his natural life, a trustee to take charge of and manage his estate may be appointed by the probate court of the county in which said convict last resided.”
By the terms of the statute (Crim. Code, §§ 258, 259; Gen. Stat. 1901, §§ 5703, 5704) the sentence imposed upon one convicted of murder in the first degree is that he suffer death, the same to be inflicted at a time appointed by the governor, not less than one year from the time of conviction, and until such time the convicted man is to be safely kept by the warden of the penitentiary.
Now, we think this sentence does not fall within the terms of either section 337 or 338. Clearly, the convict was not imprisoned under a sentence for life. His imprisonment might be for life, if his execution were not ordered, but his sentence was not for life. Nor was he imprisoned under a sentence for a term less than his natural life. The sentence was one of death. The detention in the penitentiary was something incidental to the sentence, and pending the
We are aware that the case of Ashmore v. McDonnell, a Kansas commissioners’ decision, reported in 16 Pac. 687, not found in the Kansas reports, announces a view contrary to the above. In this case, however, it does not appear that the terms of the two sections quoted were critically considered. They certainly were not commented upon, either in the opinion or in the briefs of the attorneys in the case. It seems to have been assumed by the attorneys for both parties, as well as in the opinion, that the terms of one or the other of these sections applied to the estate of one convicted of murder in the first degree. The judgment of the commissioners in this case was reversed
It is also true that the court, in the cases of Seeley v. Johnson, 61 Kan. 337, 340, 59 Pac. 631, 78 Am. St. Rep. 314, and Manley v. Mayer, 68 Kan. 377, 396, 75 Pac. 550, in referring to the case of Ashmore v. McDonnell, assumed that the sentence there was one for life, and, hence, that the terms of section 337 applied, following in the wake of the assumption in that case, without discussion or thought.
We are convinced that the question now under consideration has never before received consideration by this court.
It may be urged that the need for the appointment of a trustee and the revivor of a judgment is as great where one is confined in the penitentiary pending his execution as though he were sentenced to the term of one or more years as punishment. That may be so, but if the statute, strictly construed, does not so provide, the discussion, so far as we are concerned, must end. The question is one for the legislature, and not the courts.
We hold that the confinement of Gray in the penitentiary under the sentence imposed did not cause the judgment of foreclosure against him to become dormant, nor require the appointment of a trustee, and, hence, that the proceedings under such judgment which ripened into a sheriff’s deed were valid and
A point is sought to be made arising out of the denial in the reply of one of the deeds in the chain of conveyance from the purchaser at the sheriff’s sale. This claim is without merit, for it is admitted in the reply that Stewart is in possession claiming under the title derived by the sheriff’s deed. Therefore, having found the sheriff’s deed good, defendants are entitled to retain possession ; and, besides, the plaintiff must recover on the strength of his own title. Having been divested of that by the sheriff’s deed he cannot recover, even though the defendants have nothing but possession.
The judgment of the lower court is affirmed.