Smith v. Burnes , 8 Kan. 197 ( 1871 )

The ojfinion of the court was delivered by

Yaeentine, J.:

In this case a judgment was rendered in favor of John B. Burnes, defendant in error and plaintiff below, and against William L. Smith, one of the plaintiffs in error, for the sum of $824, and an order was made against all the defendants below that Lot No. 12, in Block 39, in Leavenworth City, should be sold, without any right of redemption, to satisfy said judgment. The judgment was rendered on four promissory notes, the first three of which were given by William L. Smith to John B. Burnes, and the last was given by William L. Smith to Lewis Burnes. The first note was given November 8th, 1865, and the amount found due upon it was $400. The second note was given December 23d, 1865, and the amount found due ujjon it was $250. The third note was given August 18,1866, and the amount found due upon it was $40. The fourth note was given May 13, 1867, and the amount found due upon it was $134. Each of these notes was secured by a separate mortgage on said lot, each mortgage bearing even date with the note it was given to secure. At the time the last note and mortgage were given William L. Smith and his wife Mary Jane Smith waived the right of redemption under the provisions of the statute of 1867, which had then just then come into force, and which permitted them to do so. (Laws of 1867, p. 188.) Afterwards Lewis Burnes transferred this note and mortgage to John B. Burnes, the plaintiff below, who brought his action on this note and mortgage as well as on the three notes and mortgages that had been given to himself. There was no waiver of redemption in the notes and mortgages given to him. After the judgment and decree of the court below, an order of sale was issued, and said lot was sold thereon, and afterwards the sale was confirmed by the court and a deed was ordered to be made to the purchaser. After all of these proceedings had transpired in the court below, the plaintiff in error brought the case to this court, and now asks to have the whole of said proceedings reversed.

l. Pleading; statement, ow eme . I. It is claimed here, and for the first time, that the petition below does not and did not state facts sufficient to authorize the court to make any order or decree as the court did, that the lot should be sold without any right of redemption. It is possible that if the objection to the p^p.^ pee:a made before the verdict of the 'jury, or before the decision of the court below, the objection should have been sustained. "We think that the statement in the petition was defective, and should have been held so, if it had been attacked at the proper time, and in the proper manner. But the objection now comes too late. The petition was not defective because it failed to state some material fact, but it was defective because it stated a material fact in a defective manner. It simply stated that “ the privilege of redemption had been waived” by the said Smith, without stating what redemption, or redemption from what, or redemption under what statute. Lender v. Caldwell, 4 Kas., 339. But these defects were undoubtedly supplied by the evidence, and the defective statement is cured by the finding of the court. It is a general primfijple of law, that where a material fact is stated in a pleading, but stated defectively, the defect will be cured by a verdict of the jury or a finding of the court.

It is also claimed by the plaintiffs in error, but incorrectly as we think, that the petition below did not sufficiently describe the lot. ^*

2. Right of redemption; waiver ;jomder of mortgages. II. It is also claimed that the court below erred in making the order and decree that the lot should be sold to satisfy the whole of said judgment, including the first three notes and mortgages, as well as the last note and mortgage without any right of redemption. This claim we think is well founded. The order or decree should have been so made that if the amount of the last note and mortgage with , the interest and costs thereon should be paid at any time before the sale, that upon a sale for the balance of the judgment the lot should be subject to redemption therefrom, as provided by law. Up to the date of the judgment there can be no question but that the defendants below at any time could have paid the last note, and allowed the judgment and decree to be rendered against them on the other three notes and mortgages. And in such a case no one would claim that the decree of foreclosure barring all right of redemption would be correct. And no sufficient reason can be given why the defendants should lose their right of redemption on a sale to satisfy the three first notes by failing to pay the last note before judgment.

III. There are a few other questions which the plaintiff in error attempts to raise in this case, only two of which as we think are of sufficient importance to be mentioned in this opinion. '

3. Levy — when saiy. There was no formal levy of the order of sale on said lot. This we think was not necessary. The court had complete jurisdiction of the property without any formal levy. The court ordered that it be sold; and the sheriff had no power to seize or sell any more or any less than the specific lot which he was ordered to sell. Wheatly v. Tutt, 4 Kas., 195. The order' of sale was not a general execution which the sheriff could levy on any property.

4. sale hy sheriff; where maae. The sale was at the court-house door. This we think was sufficient; for if the sale was at the court-house door, it must necessarily have been at the court-house, which is J 7 sufficient. (Gen. Stat., 718, § 462.) It is not claimed that there was any fraud practiced in conducting the sale.

5. Judgment maylie modified. We shall allow the defendants to have the judgment below modified in accordance with this opinion, although we cannot see that it will benefit them in the least. The sale was valid, and the reversal or modification of the judgment cannot affect the sale in any manner whatever. The title of the *1 , , - purchaser mil remain good, notwithstanding the modification of the judgment. (Comp. Laws, 202, § 458; Gen. Stat., 720, § 467.) With reference to the last note the plaintiff had a right to have the lot sold without any right of redemption; and this will uphold the sale even on petition in error. (See authorities cited in counsels’ brief.) If the defendants desired to redeem from the first three notes they should have taken steps to have the error of the distinct court corrected before any sale took place. But as they did not we do not now see that they have any remedy. Judgment modified.

Kingman, O. J., concurring. Brewer, J., not sitting in the case.

* [* The description in the petition was — “Lot No. 12, in Block No. 39, in the city of Leayenworth, in the county of Leavenworth.’1 The objection urged againstthis description was, that it was not stated that said lot was u in the original plat ” of said city.— Reporter.]