Fraser v. Seeley

Citations

• 71 Kan. 169
• 79 P. 1081
• 1905 Kan. LEXIS 112

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Judicial Sales — Inadequate Price of Non-exempt Property —Effect on Homestead. Land occupied as a homestead by a debtor, together with two other tracts, was encumbered by a mortgage which was foreclosed, and the non-exempt property ordered to be sold first, which was done. The non-exempt land brought a price much less than its true value. A motion of the judgment debtor to set aside the sale was based on the claim that the low price at which the non-exempt land sold cast on the homestead property an unjust proportion of the judgment. Held, that, under the redemption law of 1893 (Gen. Stat. 1901, sec. 4927 et seq.), by redeeming the non-exempt property for the amount at which it sold, and converting it into money at its actual value, the difference would be available to apply to the redemption of the homestead, and that the debtor, was not prejudiced.</p> <p>2. - Value of Redemption .Right Increased. The value of a debtor’s right to redeem from a sale of his lands upon execution is increased in inverse proportion to the low price at which the property is bid in by the purchaser.</p> <p>3. -Notice of Sale Sufficient. A sheriff’s notice of sale which did not recite that lands would be sold in separate parcels held to be sufficient although the decree ordering the sale provided that the several tracts should be sold separately. (Gen. Stat. 1901, sec. 4905.)</p> <p>4. -False Return of Sheriff — Creditor Estopped and Debtor Not Prejudiced. A judgment creditor was represented at the sheriff’s sale by her attorney. The debtor’s land was bid in by a second mortgagee. The sheriff returned that the property was sold “for cash in hand.” The judgment creditor moved to confirm the sale, and on the hearing it appeared that the purchaser paid nothing but the costs. The sale was confirmed. Held, that the plaintiff, the judgment creditor, was estopped from claiming that the judgment debt was not satisfied to the extent of the bid returned by the sh