121 Kan. 334 | Kan. | 1926
This appeal arose out of rulings of the court denying a motion to confirm a sale of real estate and upon another to set the sale aside. The sale was set aside and the judgment creditor, the Solomon National Bank, appeals.
It appears that the bank obtained a judgment against Lester Birch and Dallas U. Birch on June 23, 1922. Several executions were issued on the judgment, on which returns were made that no property could be found upon which to levy. Finally on May 11, 1925, one was issued which was levied on the undivided interests of Lester Birch and Dallas U. Birch on a tract of land owned by their father when he died in 1909. A sale was made of these interests to the bank for $1,000, subject to a certain mortgage on the land, and the proceedings had on the execution are conceded to have been regular in every respect. When the motion was made to confirm the sale, Lester and Dallas U. Birch, who will be referred to as defendants, moved to set it aside on the ground that the land was the homestead of the defendants, and had been for more than ten years before the judgment was rendered, and had continued to be their homestead until the time the motion was filed. Upon testimony produced the court found that after the death of the owner, William Birch, the land had been occupied by the widow, Clara T. Birch, and the three children of the intestate, as their home and had never been abandoned as their homestead by any of them except Stella, who left the home when she was married. As to Lester it was found that he had always occupied the premises as his home, until he conveyed his interest to his mother, in December, 1923, at which time' he rented the land and has continued to reside there. It was further found that Dallas U. Birch conveyed his interest to his mother subject to the mortgage of $3,000 on the entire farm, which had been renewed with the addition to it of the proceeds of a $2,500 mortgage, which was used by the defendants, Lester and Dallas U-> and which they agreed to pay out of their interest, but the latter sum has never been paid. Upon the sole ground that the farm was the homestead of the defendants the court set aside the sale.
The testimony touching the homestead feature was that William Birch died intestate in 1909. Prior to his death his wife and three children lived in the home with him, and it appears that all of them reached majority long before the judgment was rendered. At the
It is contended by the bank that the proceedings on the execution being regular, the court was required to confirm the sale. Any person interested in the property sold may move to set the sale aside at any time before confirmation. (White-Crow v. White-Wing, 3 Kan. 276.) On a motion to set it aside the court has a reasonable discretion, and if it is made to appear that there are equitable grounds for setting the sale aside, it may be done although the proceedings under the execution' are absolutely regular. If the land levied on and sold was exempt and not subject to sale, equitable grounds existed for setting the sale aside. (Robinson v. Kennedy, 93 Kan. 514, 144 Pac. 1002; Insurance Co. v. Stegink, 106 Kan. 730, 189 Pac. 925; Pool v. Gates, 119 Kan. 621, 240 Pac. 580, and cases cited.) The court was warranted in considering equitable as well as legal grounds, and could set aside the sale if it was determined that it was inequitable to confirm it. It would be inequitable to confirm a sale of property not subject to sale, and the court would have been warranted in the action taken if the-interests sold were in fact'exempt from sale on execution.- The question-then arises, were the'interests in' land held
-' The judgment is therefore reversed and the cause remanded for further- proceedings.