Ferguson v. Tutt , 8 Kan. 370 ( 1871 )

The opinion of the court was delivered by

Yalentinb, J.:

This was an action on the official bond of P. S. Eerguson, late sheriff of Wyandotte county. James A. Cruise, John E. Zeits, and Isaiah Walker were the sureties of Eerguson. The plaintiffs below, (defendants in error,) allege in their petition in the court below among other things as follows: “On the 2d of October, 1865, a decree of foreclosure of a mortgage was rendered in the district court of Wyandotte county in an action wherein Michael Dively, Edward Terry and others, were plaintiffs, and Wilkins T. Wheatley, and these plaintiffs and others, were defendants. Said decree among other things ordered that the undivided half of lot five in block six, in Wyandotte City be sold, and the proceeds be applied, first, in payment of the costs, second in payment of the claim of Edmund Terry, amounting to $2,317.90 and interest at the rate of seven per cent, per annum, and third that the remainder, if any, should be paid to the plaintiffs in this action. Afterwards an order of sale was issued, and the said Eerguson, as sheriff, collected tliei'eon $125.73. Afterwards another order of sale was issued, and the said sheriff under said order sold said lot for $4,500, making a total that he collected on said orders of sale $4,625.73. That of this sum it would require $2,509.67 to pay the costs and to pay Terry, and that the remainder, to-wit, $2,116.06, should have been paid to these plaintiffs; yet the said sheriff refused so to do.” A trial was had before a jury. The verdict was for the plaintiffs for $2,500. The plaintiffs remitted $150, and judgment wras rendered accordingly for the plaintiffs for $2,350, and costs. The defendants now seek to reverse said judgment.

1. Pleadings; execution of written instruments. I. The first action of the court complained of is, that the court erred in receiving a copy of the sheriff’s bond in evidence, and permitting it to go to the jury. Such evidence was of course unnecessary, because there was no issue upon which it could be introduced; but we cannot see that it prejudiced the defendants’ substantial rights. The plaintiffs founded their action upon said bond, alleging its execution, and setting it out in full. The defendants did not put the existence of the same in issue by denying its execution by a pleading verified by ajfidamt. (Comp. Laws, 235, eh. 30, § 1; Code of 1868, § 108.) The copy of the bond introduced in evidence was an exact copy of the bond pleaded in the .plaintiffs’ petition, and therefore the copy introduced in evidence could prove nothing more than had already been admitted by the pleadings. Admitting then, that the evidence was unnecessary and therefore erroneous, or admitting that the preliminary evidence of the execution of the bond, or of the genuineness of the copy introduced in evidence, was not sufficient, and therefore that there was error, still the error was not substantial.

2. Sheriff’s return; proof of lost recoil. II. It is claimed that the testimony of Jesse Cooper stating that on the first order of sale “ there was indorsed in the handwriting of the defendant Ferguson his receipt of $125 as received from defendant Chrysler on the-day of —-—was incompetent and illegal. There are several answers to this objection: First, the record does not show that there was any amov/nt testified to. Second, if there was any amount stated it was probably $125.73, and the plaintiffs remitted from their judgment more than enough to cover this amount. Third, if there had been an amount stated the evidence would have been competent in either of two different aspects: 1st, it tended to prove the contents of a lost record, (for a sheriff’s return on an order of sale showing that he had collected money thereon is a part of the record of the proceeding, and it had already been shown that the instrument was lost,) which record tended to show liability on the part of the sheriff; and 2d, it tended to prove the contents of a lost written admission of the defendant Eerguson, without regard to whether said written admission was a record, or not.

3. Demand Ry agent. III. It is also claimed that the other evidence of Jesse Cooper as follows was incompetent: “On the next day after the confirmation of the sale, namely, Nov. 2d, 1866, he for the plaintiffs demanded of the defendant Eerguson the overplus proceeds of the sale after paying the mortgage debt; that he told Eerguson he demanded it for the plaintiffs, and Eerguson knew he was acting as their attorney.” If a demand was necessary, or if it was necessary under the pleadings to prove a demand, then this was certainly competent evidence. A person may make a demand as well through an agent as by himself. The plaintiffs in this action were defendants in said foreclosure case. Said Cooper was their attorney of record. The decree of the court in said foreclosure ease showed these facts. A copy of this decree accompanied and constituted the body and substance of the order of sale issued by the clerk to the sheriff, January 5th, 1866. Under this order of sale the sheriff levied upon said lot, had it appraised, advertised it for sale, and struck it off to one Moses M. Broadwell, but as Broadwell did not immediately pay the purchase money the sheriff made return of no sale, as follows — “ But said M. M. Broadwell having failed to pay the purchase money aforesaid, said property is not sold for want of buyers.” On the 24th of May, the clerk issued an alias order of sale referring especially to the former order, and the decree of the court, and under this order the sheriff without having the property again appraised, advertised the same and sold it to A. B. Bartlett for the sum of $4,500, and this sale was, on the first day of November, 1866, confirmed by the court. Now, notwithstanding the foregoing facts, the counsel for plaintiffs in error, in his argument on this point, and as his main argument thereon, states in his brief that “his (Cooper’s) name did not appear on the execution as attorney,” and that “ Tutt was not a defendant in the execution.”

4. sheriff to pay without del lay-5. Confirmation of sale. g. when reply not necessary. IV. “The court’ defendant Ferguson did not “err in refusing to allow the to testify as to whether he received any money on the sale made by him under the order of sale of May 24th, 1866, or whether he executed a deed of the premises so sold to the purchaser, and whether he had asked the court for his sale to be confirmed.” After’a sale of real estate has teen made by a sheriff on execution or order of sale, and the sale confirmed by the court, the sheriff cannot be allowed to show that he has not received the purchase money on said sale. It is his duty to receive it when he makes the sale. He then holds it until the sale is confirmed by the court, and then, without waiting, he pays it over to the persons entitled thereto. He has no right to wait, as is claimed by counsel for Ferguson and his sureties, until a deed is due, (two years, as the law then was — Comp. Laws, 1862, p. 769, ch. 171, §§ 1, 3, 4,) or until a deed is demcmded by the purchaser, as the law now is, or until a deed shall be actually executed. Immediately upon the confirmation of the sale it is his duty to pay “ the purchase money in his hands ” “ to the person entitled thereto.” (Civil code of 1862, § 449; code of 1868, § 458.) In this case the sheriff was bound under the order of sale issued to him when the sale was confirmed first to pay the costs, second to pay said Edmund Terry $2,317.90 and interest, and third to pay the plaintiffs in this case (defendant* in that case) the balance. It does not belong exclusively tó'clie sheriff, as seems to be supposed by counsel for plaintiffs in error, to determine when his sale shall be confirmed. The sale may be confirmed at any time after the sheriff has made his return, and on motion of any person interested therein, or on the court’s own motion, and with or without the consent of the sheriff. (Code of 1862, § 449; Code, 1868, § -458.) The same questions which we have already considered are again raised on the instructions, but it is not necessary to consider them further. There may be a few other questions attempted to be raised which we do not think are of sufficient importance to be considered in detail. Upon the pleadings, the evidence, and verdict, we think the judgment was correct. And it makes _. oa no difference that there was no reply to the defendants’ answer. We have not discovered anything in the answer that required a reply. If the last nine supposed defenses contained in the defendants’ answer had been stricken therefrom the answer would have been just as good as it was with them. The plaintiffs alleged certain facts constituting their cause of action. Now if these facts were true, what was there in any of these nine supposed defenses that would have defeated the plaintiffs’ cause of action? Counsel for plaintiffs in error have not pointed anything out that would; and, if they only raised the questiozr of the truth of the allegations set forth in the petition, then they did not reqzzii-e a reply. Even the general denial, the first defense stated in the answer, was worth nothing so far as it attempted to put in issue the execution of any written instrument set forth in the petition, as said defense was not verified.

7. Regularity of qu^stioned56 ry sheriff. The court in the said foreclosure case may have committed some ei’rors, but the sheriff had no right in this proceeding to complain of them. As a rule, none but the par^es 1° an action cam complain of any ez’rors of the e0urt. It is certain that the couz’t committed azz error in confirming said sale; and while we think that, if the order of confirmation had been vacated or the sale set aside at any time before the sheidff had paid over the pz-oceeds o 'ye sale to the persons entitled by the decree of the cozm receive the same, it would have relieved the sheriff from pa) ing over the same, yet while said confirmation remains in force the sheriff is bound to recognize the confirmation as valid, and the sale as valid; and neither he nor his sureties have any right to attack either when sued for the purchase money, as in this case. They can raise no questions of mere irregularity in any of the prior proceedings. The judgment of the court below is affirmed.

Kingman, O. J., concurring. Brewer, J., did not sit in the case.