Dean v. McAdams , 22 Kan. 544 ( 1879 )

The opinion of the court was delivered by

Horton, C. J.:

The claim of counsel for the defendant is, that the ruling of the district court denying a temporary injunction to restrain the sale of the real estate of the plaintiff under the execution issued against John W. Crawford, et al., was not erroneous, for the reasons: First, That an action was pending to foreclose a lien when the plaintiff purchased the premises in controversy,, and as she was charged with notice of this action from the date of the filing of such petition, she could not acquire any title or interest against the lien; and second, that as she was a party defendant in the action of Wiebe v. Crawford, et al., she ought to have obtained, if she was entitled thereto, her injunction in that suit, and that, if she ever had any legal or equitable rights to the land levied upon, she had lost them by her own laches. These reasons are not sufficient. The pendency of the action of Wiebe v. Crawford would not prevent a sale of the premises to a party purchasing in good faith and for a valuable consideration. A lien for the erection of improvements cannot be created on a homestead in any manner different from its creation upon any other real estate. A homestead may be sold on an execution for purchase-money, or for the erection of improvements; but the judgment rendered for such purchase-money, or for the erection of improvements thereon, is no more a lien on the homestead than it is on any of the other real estate belonging to the judgment debtor. It certainly is no lien on property sold in good faith prior to the first day of the term of the court at which such judgment was rendered. (Greene v. Barnard, 18 Kas. 518.)

At the time the action of Wiebe v. Crawford, et al., was commenced, no attempt had been made by Wiebe to comply with the mechanic’s-lien law, and no lien for the erection of improvements existed on the property. The attempt to foreclose the pretended lien for the erection of improvements failed (as it ought to have done), as there was no lien to be foreclosed. Only a personal judgment was rendered for the amount due on the promissory notes against John W. Crawford, the maker of the notes, and only an ordinary execution was issued. On such an execution, the defendant in this case, as sheriff, after exhausting the personal property of said J. W. Crawford subject to execution, might have levied on the real estate of said judgment debtor; and had there been no valid sale of his homestead before the first day of the term at which the judgment was rendered, he might have levied on said homestead. The sale to the plaintiff deprived-him of the right of such levy. The plaintiff in this action was not compelled to ask for any order of injunction in the suit of Wiebe v. Crawford, et al. To protect her rights, she appeared voluntarily in that case and filed her answer, asking that the prayer of said Wiebe for a lien on the premises should be refused. She was successful in her application. Only a personal judgment was rendered. The court, it is true, found as conclusions of law certain matters tending in some degree to carry out the theory of counsel for defendant, that the sum sued for was a lien on the premises, but no order was made for the sale of the real estate, or for any application of the proceeds thereof; nor were such conclusions of law embodied in the judgment, nor was this plaintiff in any way enjoined or barred from setting up and claiming, the interest and title to the property which she asserted in her answer. Under these circumstances, she has nothing to complain of. in the judgment rendered against J. W., Crawford. Neither, does that judgment give any authority to the defendant, as sheriff, to levy upon and sell the property of this plaintiff on an execution issued against the property of said J. 'W. Crawford.

The order and ruling of the district court will be reversed, and the case remanded with directions to said court to grant said temporary injunction to restrain the defendant from selling the land of the plaintiff, under the execution issued against the property of John W. Crawford.

All the Justices concurring.