110 Kan. 247 | Kan. | 1922
The opinion of the court was delivered by
This action ifivolved the right to the possession of a quantity of wheat. Judgment'was given against plaintiff and she appeals.
There is no real dispute as to the ownership of the wheat. Plaintiff owned it when it was seized by the sheriff as the property of another, but it is claimed that she is estopped to claim possession
The question presented is whether the plaintiff is estopped to claim her property by reason of .the bid she made for it at a protested sale. It is true that ordinarily a bid and an acceptance of it at a sheriff’s sale results in a contract upon which the sheriff may sue. (Walker v. Braden, Sheriff, 34 Kan. 660, 9 Pac. 613.) Ordinarily the bidder cannot avoid his bid on the ground that there are liens on it or defects in title to the property sold. The fact is,
“Only the interest which the execution debtors had in the property was levied upon and sold and the purchaser took the property subject to any valid ■and subsisting lien which existed against it.” (p. 669.)
The execution debtor was not the owner of the property in question and the sheriff had no authority to levy upon it. It cannot be said that the sheriff made any representations which misled the plaintiff, but he committed a palpable mistake in seizing and offering for sale property not owned by the execution debtor. He is not suing on the bid nor is this an action to enforce the payment of the bid, but the question here relates to the ownership and right to the possession of the wheat. He was withholding possession when the action was brought and was proposing to sell it at a public sale as the property of the execution debtor. The ownership and right to the wheat was not changed by the thoughtless bid made by the plaintiff. In a resale of the property the sheriff could only offer it as the property of the execution debtor. He had no authority to sell it when it was first offered and no more right to sell it as the execution debtor’s property at a resale. •
Under the circumstances the bid made by the plaintiff did not operate to deprive her of the right to the wheat or estop her to claim possession of it. The sale itself as we have seen was made through a mistake of the sheriff and was an absolute nullity. (Zabriskie v. Meade et al., 2 Nev. 285.) He and those attending the sale were warned as to the illegality. No one could have been misled by the bid. The plaintiff had tried to prevent a sale and misappropriation of her property by notices, warnings and even threats of violence. In a moment of excitement she made another frenzied effort to save her property by making a bid for it. She did not know her rights when the bid was made and instead of acquiescing in the sale she hastened to obtain the advice of an attorney as to her rights. Upon learning her rights and that the sheriff had no authority to sell her property to pay the debt of another, she promptly took steps to recover it from the wrongful possession of the sheriff.
When the property levied upon and sold is owned by another
The judgment will be reversed, with directions to enter judgment in favor of the plaintiff for the return of the property or the value thereof.