22 Kan. 562 | Kan. | 1879
The opinion of the court was delivered by
Defendants in error obtained judgment against the plaintiff in error in two suits before a justice of the peace, filed transcripts thereof in the district court, caused executions to be issued thereon, and levied upon certain real estate. The return of the sheriff shows that he made the levy on said real estate subject to a certain mortgage of prior date; the advertisement specifies that the property is to be sold subject to said mortgage; while on the other hand, the appraisement is silent as to any mortgage, and simply names the property ;■ and the sheriff’s return, after stating the advertisement of sale, reports that he sold “said property.” Both plaintiffs and defendant made motions to confirm the sale, and the sale was confirmed. And the question now before us is, as to the disposition of the proceeds. The court ordered them applied in satisfaction, first, of the costs; second, of the judgment; third, of the
Whatever may be the hardship in this particular case, there was manifest error in the ruling of the court. This was a simple execution to enforce a money judgment, and the officer, after paying the judgment, was bound to return the balance to the defendant in the execution. The statute in plainest language commands this. (Gen. Stat., p. 719, § 466.) A failure to do this is ground of amercement. (Gen. Stat. p. 722, § 472.) The mortgagees were not parties to the actions, nor named in the execution. No order of the court could bind them, or affect their rights. The inconsistency of the court’s ruling is plain, for according to the return the mortgage was prior to the judgment, yet the court orders the judgment first paid. If it could, without the presence of the mortgagees, bind them by an adjudication of the amount due on the mortgage, it might find nothing due, and they w'ould be cut off from all lien on the premises without a day in court. But where the property is levied on and sold subject to a mortgage, the purchaser takes it subject to the mortgage. The levy determines the sale, and nothing passes by the sale which is not taken under the levy. See .authorities cited by plaintiff in error.
Provision is made for the sale of the mortgagor’s interest where only that interest is sought to be appraised and sold. (Gen. Stat., p. 726, §§491 and 492). No such proceeding was had. The real estate was seized and sold. It was seized and sold subject to the mortgage, and the purchaser took -it subject to the mortgage. The mortgagees were not in court — were asking nothing. Doubtless, if they had come into court and prayed for the surplus proceeds, it would have availed nothing, for the sale was made subject .to their mortgage.
The order of the district court will be reversed, and the