33 Kan. 71 | Kan. | 1885
The opinion of the court was delivered by
This was an action in the nature of ejectment, brought by William R. Hazen in the district court of Shawnee county, on May 26,1882, against Harvey M. Rounsa-ville, to recover lots 385 and 387 on Taylor street, in the city of Topeka. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and judgdment was rendered accordingly.
The plaintiff in error, defendant below, claims that the court below erred: First, “in declaring as a matter of law that the release executed by Hentig was void;” second, in holding that the notice of the sheriff’s sale was valid, the notice having been published in a weekly newspaper for more than thirty days, but not in every issue of the newspaper up to the day of sale. (McCurdy v. Baker, 11 Kas. 111; Whitaker v. Beach, 12 id. 492.)
We shall consider these alleged errors in their order.
I. The plaintiff in error, defendant below, claims that the court below erred in declaring as a matter of law that the said release was void, for various reasons, among which are that, presumptively, the lease is valid. Presumptively, Hentig had authority as an attorney-at-law to enter the release; the evidence of Noble and even of Hentig tended to prove that Hen-tig had authority to enter such release; the record of the ease in which the judgment was rendered tended to show that Hentig had such authority; Rounsaville was an innocent and bona fide purchaser of the property; and as Mrs. Butler and
It is also in evidence that Rounsaville had full knowledge of said judgment before the release was entered, and before he purchased the property from Noble; and that while he and Noble were negotiating with reference to the purchase and sale of the property they procured an abstract of the title to the property, which showed that the judgment was in fact a lien upon the property; and the evidence is undisputed that Hen-tig himself, during that very time, told Rounsaville that the judgment was a lien upon the property, and that, while he was willing to release the judgment, as Noble desired him to do, yet that he did not consider that anything he, Hentig, might
II. The plaintiff in error, defendant below, also claims that the court below erred in holding that the notice of the sheriff’s sale was valid: It appears from the evidence that this notice was published in a weekly newspaper, on March 30th, April 20th, and April 27 th, of the year 1882, for the sale which was to take place, and did take place, on April 29th of that year, and that the notice was not published in such newspaper on April 6th, or April 13th, but for some unexplained reason was omitted from the issues of the paper on those days and of those dates. Does this omission render the notice void? We think it renders the notice voidable, and for that reason the sale might have been vacated or set aside upon proper motion before its confirmation. (McCurdy v. Baker, 11 Kas. 111; Whitaker v. Beach, 12 id. 492.) But we do not think that the omission renders the sale void, or that it may be treated as void in any collateral proceeding, or upon any collateral attack like the present. (Freeman on Executions, §§286, 339; Freeman on Void Judicial Sales, §28;
Perceiving no error in the rulings or judgment of the court below, the judgment will be affirmed.