Moore v. Meek , 8 Kan. 153 ( 1871 )

The opinion of the court was delivered by

Kingman, O. J.:

The facts necessary to understand the decision in this case are as follows: The note on which suit was brought was dated April 30,1867, and was due in six months from date. The note was secured by a mortgage. The petition alleged a waiver in the mortgage of the right of redemption in pursuance of the law which went into effect just before the execution-of the mortgage. An answer was filed, which, when the case was called for trial, was withdrawn, and the plaintiff took his judgment, which was for the money due and costs, and an order for the sale of the premises mortgaged to pay the judgment. The premises were sold, and due return of the sale was made to the court. At this point in the proceedings, the plaintiff (who is plaintiff in error,) at the April Term, 1869, moved the court for an order of the court to correct mino pro fame the original judgment rendered at the November Term, 1868, so that the same should be, “ that the defendants and each of them should be forever barred and foreclosed of any and all right of redemption in and to the said mortgaged premises, and that a deed to the same be made to the purchaser thereof by the sheriff.” The court, “ having heard the proofs and papers in the case,” overruled the motion, to which plaintiff excepted. At a subsequent day of the term the sale was confirmed, and the sheriff ordered to make to the purchaser, Ann Smith, acertificate of sale. The plaintiff excepted to so much of the order as directed the ceri tificate to issue. The sale was for $652.24, a sum greater than the judgment and costs of sale.

The plaintiff in error claims, first, that it was error to refuse to correct the judgment entry as requested; and second, that the purchaser was entitled to a deed on the sheriff’s sale without such order. If the second objection be tenable, then it is manifest there was no error in the first to the prejudice of any one. The correctness of the decision however does not depend upon a conclusion wrenched from the arguments of plaintiff in error.

l. Nunc pro tunc orders; when made, ' 2. RigM of not barred "by nunc tunc order, A mmo pro twno order is made to subserve the purposes of justice, but never to do injustice: 2 Bouvier, 247. Let us see how the rule would affect this case: We will consider , the case as though the mortgage authorized the allegation in the petition, as to the waiver of the right of redemption, and that the plaintiff was entitled to have had the judgment originally entered as he attempted to have it done by his motion, and that a refusal to so enter the judgment at the time would have been such error as this court would have corrected on review. Still, it does not follow that it was error to refuse to correct it when the motion was made. Eights had accrued under it, and interests had passed by virtue of it; and if any of these were to be affected prejudicially by granting the motion, then it ought not to have been done. At the time, and under the facts, the right to redeem land sold at sheriff’s sale, was the general law. Certain exceptions had been made by a law passed before this debt was created. Lands sold subject to redemption would bring less than if sold x ° absolutely, untrammeled by the contingency of being redeemed. The sale was made under a judgment such as was usually rendered when redemption was allowed. The purchaser does not go bach of the judgment in his examination of the authority of the sheriff to sell the property, except to see if the court had jurisdiction. The bids are made in view of the judgment as it is; and where the contingency of redemption exists, the bidder bids les& than he would if the sale were absolute. ’Whatever he may have bid less is just what (in his estimation) the right of redemption is worth to the defendants. Having sold the property at the less price, the plaintiff comes into court and asks that the judgment be so amended mmo pro twio as to cut off the right of redemption. This would be a great injustice to the defendants. They were entitled to have their proj)~ erty sold at an increased price, realized from an absolute sale, or, it having been sold at the less price on account of that opportunity having been left open to them, they were entitled to its benefits. To have corrected the judgment at the time the motion was made would have deprived them of both advantages. The motion was rightfully refused.

3. a party not basso8right to object. But was the purchaser entitled to a deed under the facts as shown ? For the reason suggested on the first point, we are not inclined to disturb the decision of the court below, unless compelled to do so by the law. In confirming the sale the court is only to “examine the proceedings of the officer;” and if they are found to be in conformity to the law, the sale must be confirmed. To the action of the court, so far, no objection is made, and no error is claimed. When ^lie ga|e confjrmecj the plaintiff is entitled to his money, and the sheriff is bound to pay it to him to the extent of his judgment. In this case such payment would satisfy plaintiff’s claim and something more. He not being the purchaser has no more interest in the proceedings of the court. Whether the sheriff shall make a deed to the purchaser, or a certificate of sale, is a question in which the purchaser and the defendants are alone interested, and neither of these parties are complaining of the action of the court. If it be said that the court is screening itself behind a technicality, the answer is, that if such is the fact it is in the interest of justice and fair dealing. We are disposed to think the court below decided correctly. We feel sure that the decision was not prejudicial to the rights of the plaintiff in error. Wherefore the decision is affirmed.

Yalentine, J., concurring. Brewer, J., not sitting.