112 P.2d 95 | Kan. | 1941
The opinion of the court was delivered by
This appeal involves a ruling of the trial court fixing the period of redemption on confirmation of a sale on foreclosure of a mechanic’s lien, the appeal being by the purchasers at such sale. The question presented arises out of the following:
On the hearing of the motions and objections, the trial court concluded that defendant Rice was entitled to an eighteen months’ period of redemption. It may here be observed that a new term of the district court in Chase county commenced on the first Tuesday in June.
On July 21, 1940, the purchasers filed a motion asking for an order terminating the right of redemption granted Rice by the order of May 31, 1940, for the reason that the lease to Rice had been terminated and he no longer had any interest, right of possession or lease in and to the lands on which the property sold was situated, and reiterating the claim the property was personal property. In denying this motion, the trial court, among other reasons, stated the order of May 31, 1940, had become final and it was without power, at a later term, to disturb the order.
In due time the purchasers perfected an appeal from the trial court’s rulings of May 31, 1940, and July 20, 1940.
Appellants in their brief present only the question whether the property described in the pleadings and subsequent proceedings and sold at the sheriff’s sale was real or personal property. In that connection, they direct our attention to two sections of the lease from the railway company to the defendant Rice, under which Rice occupied the real estate on which the grain elevator and appurtenances were constructed. One of these sections provided the lease could be terminated by either party upon thirty days’ notice to the other, specifying the date termination should take place, following which all rights under the lease should cease. The other section
“A mechanic’s lien, or lien for materials and labor, may attach to a leasehold estate.
“A leasehold estate may include buildings, fixtures and machinery, placed upon the real estate by the tenant.
“Such a lien may attach to the leasehold estate, including the buildings, fixtures and machinery placed upon the real estate by the tenant, although the tenant may have the right and privilege of removing such buildings, fixtures and machinery from the leased premises.” (Syl.)
(See Miller v. Bankers Mortgage Co., 130 Kan. 543, 287 Pac. 618, holding to the same effect, and also 40 C. J. 63 and 18 R. C. L. 886.) And the following cases recognize the rule: Lumber Co. v. Osborn, 40 Kan. 168, 19 Pac. 656; Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019; Lumber Co. v. Fretz, 51 Kan. 134, 32 Pac. 908; Mulvane v. Lumber Co., 56 Kan. 675, 44 Pac. 613; Lumber Co. v. Arnold, 88 Kan. 465, 129 Pac. 178; Pond v. Harrison, 96 Kan. 542, 152 Pac. 655; Bond v. Westine, 128 Kan. 370, 278 Pac. 12. It is clear that plaintiff was entitled to a mechanic’s lien for the materials furnished by him in the erection of the elevator on the leasehold estate, and that being so, he had the right to foreclose his lien and have the property sold if his account for materials was not sooner paid. The action proceeded to a judgment of foreclosure. No appeal was then or thereafter taken either by the defendant Rice as owner of the leasehold or by any other party to the action claiming any right in the leasehold or the improvements on it. In accordance with the judgment, an order of sale issued, a sale was had upon notice and in the manner required for the sale of real estate, and upon the sheriff’s return being made, plaintiff moved for confirmation of the
Appellants were purchasers at a judicial sale and bought only what the court had ordered sold. There are no equities in their favor; they bought with notice, and acquired only the interest of the judgment debtor at the time the order-of sale issued. (See Union Pac. Rld. Co. v. Huse, 127 Kan. 601, 274 Pac. 240.)
Error has not been made to appear and the ruling of the trial court is affirmed.