51 Kan. 233 | Kan. | 1893
The opinion of the court was delivered by
Ejectment brought by Patrick and Daniel Lyden against N. Hazel, to recover the possession of the west half of the northwest quarter and the west half of the southwest quarter of section 24, township 13, range 8, in Lincoln county, in this state. John Lyden, deceased, who died in February, 1875, was the owner in fee simple in his lifetime of the land described, the title of which is in dispute. At his death, being unmarried, he made, by his last will and testament, his sister, Mrs. Mary Cannon, formerly Mary Lyden, his sole heir. On March 29, 1875, Mrs. Cannon sold and conveyed the land to her brothers, Patrick and Daniel Lyden. In May, 1876, Ellen Mclnerey obtained judgment in the district court of Lincoln county against the estate of John Lyden, deceased, for $160, including costs. This judgment was filed as a claim against the estate of John Lyden, deceased, in the probate court of Lincoln county. On July 31, 1876, the probate court issued execution, directed to the sheriff of that county, to collect the judgment and costs out of the property or estate of John Lyden, deceased. The sheriff received the execution on July 31, 1876, and on August 5,
Assuming that the sale to Farnsworth, on September 7, 1876, was grossly irregular or void, the question for us to determine is, whether the Lydens were estopped, at the commencement of this action, from questioning the sale to or the title obtained by Farnsworth, under whom Hazel claims title. L. E. Farnsworth purchased the land in good faith, and paid the sheriff at the time of the sale all that it was reasonably worth. After Farnsworth purchased the land, Patrick Lyden quietly and without objection gave up to him possession of the same. At the time of the sale by the sheriff, Patrick Lyden was administrator of the estate of John Lyden, deceased, and was at all times the agent of his brother, Daniel Lyden. After the sale, Patrick Lyden received the proceeds thereof, applied a part to the payment of claims against the estate of John Lyden, deceased, including a claim which he had against the estate, and the surplus of such proceeds he retained for Daniel Lyden and himself, as assignees of Mrs. Cannon, the devisee of John Lyden, deceased. He knew when thfe land was levied upon under the execution by the sheriff, and was present at the sale, but made no protest. He, however, did not know that the sale was grossly irregular or void until a short time before this action was commenced. After the sale, Farnsworth and his subsequent grantees occupied and made valuable improvements upon the land, with the knowledge of Patrick Lyden and without any objection from him, although Lyden resided all the time within two miles of the premises. This action was brought on the 28th of August, 1888, nearly 12 years after the sale by the sheriff to Farnsworth.
In Smith v. Cramer, 39 Iowa, 413, one who pleaded a judgment, in honest ignorance that it was void, was nevertheless held to be estopped from availing himself of a mistake of his legal rights. A strong case, holding the same doctrine, is Maple v. Kusart, 53 Pa. St. 348. There it appeared a husband and wife were seized of an estate by entireties-. The husband in his will directed the land to be sold, and the proceeds to be divided among his wife and children. Having named no one to make the sale, the land was sold under an order of the orphans’ court, and bought by two of the children, at the request of the widow, who received her share of the proceeds, in accordance with the will. After her death, in ejectment for the land by some of the heirs, it was held that they were estopped by her acts, and that the estoppel would operate notwithstanding she was ignorant of her legal rights. A somewhat similar decision was made in a more recent case, Cox v. Rogers, 77 Pa. St. 160.
In Reichert v. Voss, 2 S. E. Rep. (S. C. Ga.) 558, the chief justice, speaking for the court, said:
“The sale, too, occurred at a wrong time and place, and, as a constable’s sale proper,-counts for nothing. But we hold with the court below, that after the active part taken by Mr. Reichert in promoting the rendition of these judgments, and the making of a sale under them, he is estopped from pursuing the property in the hands of a purchaser who has bought honestly, and parted with his money. If the notary and the constable had not been officers at all, but only private persons, and if Reichert had authorized one to give judgment and the other to enforce it against his property, (he accepting property for storage after seizure and aiding to promote its removal to the place of sale,) he would have been bound by the transaction.”
“Equitable estoppels have place as well where the proceeds received arise from a sale by authority of law as where they spring from the act of the party, and the application of the principle does not depend on any supposed distinction between a void and a voidable sale.”
In Mitchell v. Freedly, 10 Pa. St. 208, it was held that, where a sheriff’s sale was confirmed without objection, the application of the proceeds to the debts of the defendant in the execution “is the same thing as if paid to himself.” It is fully settled, upon principle and authority, that where a sale is made for the benefit of anyone, the receipt of the proceeds by such person validates it. In such a case, the supposed distinction between a void and a voidable sale is immaterial.” (7 Watts & S. 111; 5 Pa. St. 176; 8 Watts, 280; Spragg v. Shriver, 25 Pa. St. 282.)
In Gray v. Crockett, 35 Kas. 66, this court decided that “ If one stands by and allows another to purchase his property without giving him any notice of his title, a court of equity will treat it as fraudulent for the owner to afterward try to assert his title.” See, also, Hardin v. Joice, 21 Kas. 318; Kothman v. Markson, 34 id. 542.
It is urged upon the part of the Lydens, that the west half of the southwest quarter was never levied upon, never appraised, never advertised, and never sold. It is admitted, however, that this 80 acres of land was included in the sheriff’s deed, recorded December 11,1876, and considering all the testimony in the record, it is clearly shown that this 80 acres was paid for by Farnsworth and taken possession of by him under the sale. Therefore, both 80 acres must be treated as similarly situated, and controlled by the doctrine of estoppel. It is possible that there is a clerical error in the execution and return embraced in the record; but whether there is or not, there is sufficient other testimony tending to show that if an equitable estoppel applies to one 80 acres of land it does to the other 80.
