Johnson v. Hovey

9 Kan. 61 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

The only question in this case is, whether the court below erred in refusing to confirm a sheriff sale, and in setting aside the same. The principal objection, urged against the sale is, that it was a sale of two separate town lots in gross, and not separately. The return of the sheriff is perhaps open to two or more different constructions: First, it may be claimed that the said town lots were adjacent, and composed, taken together, only one tract of land; or it may be claimed that they were not adjacent, that one or more other lots intervened between them, and that they composed two separate tracts of land. Second, it may be claimed that the sheriff sold the lots separately, or it may be claimed that he sold them both together. Now, if the return of the sheriff is fairly open to two different constructions, we suppose the sale ought to have been set aside. In Ohio it has been decided that “Where an appraisement or sale is fairly susceptible of two interpretations, if the variance is material, the court would be justified, generally, in setting the same aside and oi’dering a re-sale.” Ohio Life Ins. and Trust Co. v. Goodin, 10 Ohio St., 557. In this case the court below undoubtedly constracd the return of the sheriff as showing that the said lots were separate parcels of land, and that they were sold together or in gross. If the proceediixgs were equally open to two different constructions we would put the same construction upon such proceedings as the record shows that the court below did; and where the construction given by the court below seems to be the correct one, we wrnxld certainly sustain that eonstraction. As a rule the court below can know better what construction to put upon its own proceedings—the proceedings of itself aixd its own officers—than we can. And it will always devolve upon the plaintiff in error to show affirmatively (where he so claims,) that the court below put the wrong construction upon such proceedings. Such has not been shown in this case. As an original proposition we think the court below was right. The lots were in the same block, but they were not numbered consecutively. They were numbered seven and nine respectively, which would seem to indicate that they were not adjacent to each other but that there was at least one other lot intervening between them. The sheriff’s return uses the following language: “I offered said lots for sale at public auction and sold the same to Jonathan Daniell for the sum of eleven hundred dollars, he being the highest bidder therefor, and that sum being more than two-thirds the appraised value thereof.” The return of the appraisement, which we do not quote, clearly shows that the appraisement was made in gross, and not for each lot separately. This we think clearly shows that the lots were sold in gross and not separately. The whole record is entirely consistent with this construction. According to the authorities a sale thus made, though not void, is nevertheless irregular, and voidable, and may be set aside on motion of the judgment-debtor or other person aggrieved thereby: Laughlin v. Schuyler, 1 Nebraska, 409; Bradford v. Limpus, 13 Iowa, 424; Lay v. Gibbons, 14 Iowa, 377; White v. Watts, 18 Iowa, 74; Cunningham v. Cassidy, 17 N. Y., 276; Bunker v. Rand, 19 Wis., 253.

In this case the motion to set aside the sale was made by the judgment-debtor, and the question may be asked how could the court below know that he was aggrieved or injured without any special proof of the same? We think that it must be presumed fro® the sale itself, without such special proof, that injury resulted to the judgment-debtor. It can hardly be supposed that lots separated from each other could be sold so advantageously to the judgment-creditor if sold in gross as if sold separately. Many persons might want to bid' on one lot that would not want to bid on the other, or on both. The lots should be so offered for sale as would invite the fullest and freest competition. Offering lots adjoining each other for sale in gross might in some cases accomplish this; but offering lots separated from each other for sale in gross could hardly do so under any circumstances.

We do not think that it is necessary to consider the other points made by counsel for defendant in error. The order of the court below setting aside the sheriff sale is affirmed.

All the Justices concurring.