Kline v. Camp

49 Kan. 114 | Kan. | 1892

Opinion by

Strang, C.:

October 12, 1888, defendants in error, who were plaintiffs below, obtained a personal judgment against these plaintiffs for the sum of $1,401.93, and also for a foreclosure of a mortgage on the southwest quarter of section 24, and the northwest quarter of section 25, all in township 22 south, of range 2 east, in Harvey county, Kansas. Upon said judgment, the court directed an order of sale to issue to the sheriff, commanding him to appraise, advertise and sell said lands. The order of sale was issued, the land duly appraised at $2,740, advertised and offered for sale, but returned “not sold for want of bidders.” November 24,1888, another order of sale was issued to the sheriff, again commanding him to appraise, advertise and sell said land. Under this second order the lands were reappraised at $2,014, and afterward advertised and sold for $1,343, to the judgment creditors. February 27, 1889, the court set aside the sale made on the second order of sale and appraisement, and also set aside the appraisement heretofore made, and directed a new order to issue and a new appraisement to be made. Thereupon, another order of sale was issued, upon which the lands were again appraised, this time at $2,654, advertised, and sold to Camp and Ellett, the creditors in the judgment on which the order of sale issued, for $1,769, which said sum was not paid by the purchasers, and the property was again advertised, and sold to said Camp and Ellett for $1,770, which sale was afterward confirmed by the court.

The contention of the plaintiffs in error is, that the court erred in ordering a second appraisement of the land before it had been twice offered for sale under the first appraisement, and that such error was not cured by any of the subsequent proceedings in the case. The land did not sell when first offered for sale, because no bids were received therefor. The sheriff returned the property “not sold for want of bidders.” An alias order of sale was then obtained, under which the sheriff', without any order of the court therefor, procured the lands to be reappraised, instead of offering them for sale the second time under the first appraisement. This was a mistake of the sheriff, and the court seems to have treated this second appraisement as a nullity, aud regarded the sale made on the alias order as having been made under the first appraisement. We do not discover any error in this. The sheriff had no power at that time to order a new appraisement of the lands. No order of the court had been obtained directing a second appraisement, and we think the court was justified in treating such appraisement as void. The first appraisement had not been set aside by the court, and was therefore the only effective appraisement in existence when the lands were the second time offered for sale. The amount for which the lands sold on this offer was less than two-thirds of the existing appraisement, and was therefore set aside by the court. The court then ordered a new appraisement. We think that was a proper thing to do at that stage of the case, and therefore not error. A new order of sale was then issued, and a new appraisement of the property had, at a valuation of $2,654. The land was then advertised and sold for $1,769. It was afterward discovered that this amount was a few cents less than two-thirds of the last appraisement. The purchasers, therefore, did not pay the purchase-money, and the land was once more sold to the same purchasers for $1,770, which sale was afterward confirmed by the court. The difference between the first and last appraisements was less than $100. There seem to have been a good many mishaps, and a good deal of blundering on the part of the officer making the sale of the lands, but we do not think the court below committed any serious mistakes in the case. It is therefore recommended that the judgment of the district court be affirmed.

By the Court: It is so ordered.

All the Justices concurring.