15 Kan. 263 | Kan. | 1875
The opinion of the court was delivered by
“On motion of said plaintiff, by Messrs. T. <fe. C. his attorneys, and on producing the return of the sheriff of this county of a sale of real estate made by him on the ninth day of March 1863, on an order of sale issued in this case, and dated the eighth day of January 1863, and the court on an examination of said proceedings being satisfied that said sale has been made in all respects in conformity to law; it is ordered by the court, that said sale and proceeding be and the same is hereby confirmed, and the said sheriff is ordered to*268 make to the purchaser a deed for the land and tenements so sold.”
Now, a confirmation of a sheriff’s sale is ordinarily, as in this case, a purely ex parte proceeding, and it may always be so. The sale may be confirmed on the motion of the plaintiff, the defendant, the sheriff, or any other person interested therein, or on the court’s own motion, and may be done without notice to any person, and in the absence of every person except the officers of the court. And no particular time is required for the confirmation of the sale. It may be done at any time after the sale has been made, when the court is in session, and for an indefinite period of time. And it is usually done merely upon an examination of the return of the officer, (White Crow v. White Wing, 3 Kas. 276,) although it would probably be prudent in some cases for the court to look behind the return of the officer, and see whether the writ itself, the execution or order of sale, followed the judgment. The whole difficulty in the present case has probably arisen from the fact that the order of sale does not follow the judgment. It does not seem however to be the special duty of the court on the confirmation of a sale, to determine whether the clerk has done his duty in issuing the writ, but only whether the sheriff has done his duty in executing the writ. In the present case we think .the sheriff undoubtedly followed the writ scrupulously, and did his exact duty under the writ. He undoubtedly advertised and sold land in section 28, and not' in section 8, just as the writ directed him to do. The confirmation of the sale in this case does not pretend to show otherwise, but really tends to show that the sheriff did his duty; that is, that he sold the land which he was ordered to sell by the writ, which was land in section 28, and not land in section 8. We suppose that when counsel for plaintiff below (defendant in error) comes to consider the nature and character of an ex parte confirmation of a sheriff’s sale made long after judgment, he will no longer consider that such a confirmation is an adjudication, conclusively binding upon all parties that may possi
The judgment of the court below is reversed, and cause remanded for further proceedings.