Mills v. Ralston

10 Kan. 206 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

The following are the material facts in this case. In November 1864, Madison Mills and wife executed a mortgage to William H. Ralston, administrator, and Lucinda McCracken, administratrix, of the estate of Nelson McCracken, deceased. A portion of the money secured thereby remaining unpaid. On the 14th of March 1871a suit was commenced in the district court of Leavenworth county to foreclose this mortgage. Personal service was had on both Mills and his wife. They filed no answer, and on the 19th of May 1871 a decree was entered. The petition prayed for a decree barring and foreclosing all the defendants of and from any right and equity’of redemption, and other right whatever, from and after the sale, and so the decree was entered. Three special executions were successively issued upon such decree, and upon the third, one tract of land was sold to Mathew Ryan, This sale took place on the 6th of April 1872, nearly a year after the decree. Ryan paid one hundred dollars down. On the 12th of April 1872 the plaintiffs Ralston and Mrs. Mc-Cracken filed their motion to confirm the sale., On the 13th Ryan filed the following motion:

[Title.] “And now comes Mathew Ryan, the bidder at the sheriff’s sale made in pursuance of the decree in the above entitled cause, and moves the court that the sale made by the sheriff of Leavenworth county, in the said cause, be confirmed by the court, and said sheriff be ordered and required upon the immediate payment of the amount of his said bid, which is now here tendered in court, to make, execute, acknowledge, and deliver to said Mathew Ryan, a deed for the premises so sold to him, in pursuance of said decree. . G. & F., Atty’s for Mathew Ryan.”

On the call of this motion the plaintiffs, ■ and Madison Mills, the principal defendant, who now for the first time appeared in court, objected to the healing unless the moneys still unpaid on the bid were first paid to the sheriff. This was immediately done. The record then reads: “And thereupon the plaintiffs and said defendant Madison Mills object only to so much of said motion as asks that a deed for the land sold herein be made, executed and delivered to said Mathew Ryan by said sheriff.” The district court sustained the motion, confirmed the sale, and ordered a deed. No motion was made to correct the decree, which, so far as the record shows, still remains as originally entered. Did the district court err in ordering a deed? This is the single question presented for our consideration. At the date of the execution of the mortgage the law authorized a redemption at any time within two years from the date of sale. (Comp, Laws 1862, p. 769, ch. 171.) In 1868, Gen. Stat., p. 893, ch. 85, § 1, a law was passed providing that the redemption act should “not apply to any suit or action prosecuted in any court, when the plaintiff is the executor or administrator of the estate of any deceased person,” and authorizing a sale and deed without any redemption. It is claimed that this law applies to the present case, that it is constitutional, and that therefore the decree was properly entered barring redemption. There may be some question as to its applicability, for though the plaintiffs describe themselves in the caption and body of the petition as administrator and administratrix, there is no distinct allegation that they are such, or that they sue in their representative capacity. Still we should probably have little trouble with this question. There is graver doubt as to the constitutionality of this law when applied to notes and mortgages entered into before its passage. On the one hand it is claimed that the law in existence at the time of a contract enters into and forms a part of the contract, and that a substantial change of such law would operate as a modification of the old and the making of a new contract, which neither legislatures nor courts can do. On the other, it is said that this is a unilateral contract, the payee and mortgagee having performed his part, and the only obligation being that of the payor and the mortgagor, that he will pay so much money at such a time, or in default forfeit the mortgaged property; that the matter of redemption is purely of the remedy; and that any legislation concerning the remedy, which does not lessen the ability of the creditor to enforce payment, is within the power of the legislature and does not conflict with art. 1, § 10, clause 1, of the federal constitution which forbids any state to pass a law “impairing the obligation of contracts.” Much might be said upon both sides of this question, and it is one of no little interest and importance. It is unnecessary for us however to enter into any examination of it, as upon another ground it seems to us the ruling of the district court should be affirmed. The decree barred redemption. The sale was made under that decree. An examination of the petition would have shown the defendants what was claimed; of the decree, what was ordered. Three special executions were issued. Nearly a year elapsed before the sale. The defendants might reasonably be presumed to know the terms of -the decree. The record shows affirmatively that they did know prior to the confirmation. Yet no motion was made to change or correct it. It remains as it was entered. The purchaser at a sheriff’s sale looks to the decree for the measure of interest and title he will acquire by his purchase. He knows he can get no more interest than the defendant possesses and the decree' orders sold. But he bids, rightfully expecting to obtain all that. It is that interest which the sheriff offers; it is that he bids for; it is that which is struck down to him; and it is that which, if the sale be confirmed, he should then receive. That Eyan’s title would, as against Mills, have been perféct, if the sale had been confirmed and deed made, seems hardly to admit of question. When a court of .general jurisdiction has jurisdiction of the person and subject-matter, an erroneous ruling, even upon a question of law, will not avoid a title obtained under its decree. In Wheaton v. Sexton’s Lessee, 4 Wheaton, 506, the court says: “The purchaser depends on the judgment, the levy, and the deed. All other questions are between the parties to the judgment and the marshal.” In Voorhees v. The Bank of the U. S., 10 Peters, 469, the same tribunal uses this language: “The purchaser is not bound to look beyond the decree when executed by a conveyance, if the facts necessary to give jurisdiction appear upon the face of the proceedings, nor to look further back than the order of the court.” See also Thompson v. Tolaire, 2 Peters, 168. But the deed was not made when Mills appeared in court, and the objection here is to the order for a deed. A sale in chancery is not complete till the sale is confirmed. In ordinary sales by auction, or by private agreement, the contract is complete when the agreement is signed; but a different rule prevails in sales before a master. In such cases “the purchaser is not considered as entitled to the benefit of his contract till the master’s report of the purchaser’s bidding is absolutely confirmed.” 2 Dan. Ch., 1271. See also Kaufman v. Walker, 9 Md., 229; Tooley v. Kane, 1 Smedes & M. Ch., 518. Hence the authorities cited fail of exact application to this case, or perhaps more correctly some facts are ■wanting, which are necessary to make the rule therein stated fully applicable and decisive. Yet the omission is more than supplied by the acts of Mills, one of plaintiffs in error. He appeared on the motion to confirm the sale, and objected to any hearing until the purchase-price had been paid to the sheriff, and when that was done consented to the confirmation of the sale. True, he objected to the order for a deed. But consider the effect of his consent to a confirmation. The proceedings on the sale were regular; the plaintiffs, defendants, and purchaser agreed in seeking a confirmation. The confirmation then followed as a matter of course. The decree barred redemption. The sale followed the decree. All the interest of ,the mortgagors, (not an interest subject to the right to possess and redeem for two years,) was offered by the sheriff, and was bid for by the purchaser. The confirmation closed that sale. The sale as made, was the sale confirmed, and that by consent. The legal effect of that confirmation was to give the party a right to a deed, and the defendant could not, by objecting to a deed, deprive the purchaser of a right which flows from the confirmation. It is said that this carries the consent of the defendant to a point beyond that to which he intended it should go, and that the limit he intended is clearly indicated by his objecting to a deed. It is plain he wished only the confirmation of a sale of an interest subject to possession and redemption; but the trouble is, no such sale was made. It may be, that by consent of plaintiffs, defendant, mid purchaser the decree might have been modified, and the sale confirmed as of an estate subject to redemption. But nothing of the kind was done. Plaintiffs and purchaser, were seeking a confirmation of the sale made, and might not have cared for a confirmation of a different one. This is not in the nature of a contract in which unless the minds of the parties agree there is no contract. The order and decree of a court is not simply the record of an agreement. It establishes rights founded upon past transactions. The law, and not the will of the parties, determines its effect. For instance: A. brings suit against B. B. enters his appearance, and consents to judgment, but objects to the judgment being a lien on his realty in the county. The judgment is entered, A. making no consent. The lien would follow. The law attaches it to the judgment. Just so here. The confirmation of a sale under a decree barring redemption entitles the purchaser to a deed. Neither plaintiffs nor purchaser made any consent. They asked affirmative relief, relief they were entitled to under a decree. They asked confirmation of a sale. The defendant consented to it. It was ordered. Then followed the right to a deed, a right resting upon decree, sale, and confirmation. The judgment of the district court must be'affirmed.

All the Justices concurring.