Treptow v. Buse

The opinion of the court was delivered by Brewer J.: fertokisK' C0lut This is a proceeding in error to reverse the order of the district court of Douglas county overruling a motion to set aside, and sustaining a motion to confirm, a sale of real estate. Several points are presented and urged with ingenuity and force. We will reverse the order of counsel for plaintiff in error, and consider first the last point in his brief. The judgment upon which these proceedings were had was rendered in a justice’s court. An abstract of that judgment, under §119 of the justice’s act, was docketed in the district court, and thereupon from that court issued the execution to the sheriff. Counsel claims .that under §518 of the code a transcript of the judgment must be filed in the district court to support such proceedings as were had. We think not. True, a transcript could be filed, and would justify like proceedings. But we think the abstract must have the same force as a transcript. Sec. 119 is in art. 9 of the justice’s act, an article entitled and devoted to the matter of “Judgments.” The section reads: “ For the purpose of docketing in the district court the abstract of a judgment of a justice of the peace shall be in the following form,” etc. This obviously contemplates a transfer of the judgment from one court to the other. “For the purpose of docketing in the district court.” Docketing what? The judgment. But if the judgment be transferred to the district court, then, in the absence of words of limitation, it becomes subject to the same rules, and vested with the same powers as though originally rendered in that court. This works no hardship. So far as the matter of the indebtedness is concerned, that is settled as conclusively by the judgment of the justice [177] as it could be by that of the district court. It would be in either case res adjudicata. All that is gained by transferring is additional means of enforcing payment; and if the debtor fails to pay he has no legal cause of complaint if the creditor pursues the ordinary methods of enforcing payment. 2. sheriff sale; notice. The next point is that the advertisement of the sale was not sufficient as to time. The first publication was on July 13th. The sale on August 14th. The publication Was m the Aveekly paper, and was repeated each consecutive week from the time of the first publication to the day of sale. This we think satisfies the statute. It is 'not necessary that the notice be in a daily paper. A weekly is sufficient. Nor does the statute call for publication for a certain number of weeks. It says notice “must be given by advertisement for at least thirty days before the day of sale.” Civil code, § 457. Here the notice was published more than thirty days before the sale, and was continued through every successive issue of the paper until that time. s. sale of land, defendant. 4 Sheriff pives no warranty. [178] „ „ , „ 5. Return of “sro goods.” c search "by sonánwop-01" eity' 7. Affidavit to imretammusfue certain and specific. [177] Again, it is claimed that the advertisement does not advertise the land to be sold but “the interest of the judgment-debtor in the land.” The return of the sheriff shows that he levied upon the land, and that the land was appraised. The advertisement gives notice that he will sell “ all the right, title and interest whatsoever of the defendants in the land,” describing it, “appraised at $875, and taken as the property of C. F. W. Treptow, et al., and to be sold to satisfy said execution.” All that the sheriff can sell and convey is the interest of the defendant. He of course gives, ail<^ ProPoses to give 110 Warranty; but he prop0ses to sell no limited interest, no equity of redemption, no leasehold estate. He gives notice that the land has been taken as the property of the defendants, and their interest therein he will sell. No one would be misled as to what was offered for sale. It clearly indicates that while the officer gave no warranty he was attempting to sell and convey a full and perfect title. Again, it is urged that the return does not show “no goods.” The return shows [178] upon, its face that the sheriff made search for personal property. He received the execution at 4 o’clock p. m.. J 7 june 26th, and at 4 o’clock p.m. of the same day levied on the lot. The exact expression, “No goods,” need not be indorsed upon the execution. It is sufficient if the return show that the officer was unable to find any goods and chattels. Here he returns that “after diligent search I have' been unable to find any goods or chattels of the within-named defendants.” True, he returns that he levied the execution on the land at the same time that he received it, so that he does not seem to have had very much time for searching after personal property. But for aught that appears he may have had ample time. He may have been so familiarwith the financial condition of defendants as to know that they had no personal property. They may have been standing by when he received the execution, and assured him they had none, and sent him to the real estate. At any rate, we are not justified in assuming that the return is untrue. For any wrong done by his return, both himself and bondsmen are liable. And if the defendants had personal property, and wished to save their real estate, they had ample time to turn such property over to him before the sale. It is claimed that the affidavit of Carl F. W. Treptow offered on the motion to set aside the sale contradicted this return of the sheriff. The judgment was against four defendants. The real estate was taken as the property of one. He makes the affidavit that the other defendants had personal property subiect to seizure at the date xx. ° 0f the execution, but he nowhere describes such property, or points out where it may be found. It would be trifling to set aside a return upon such an affidavit. The other defendants may have personal property. So may Treptow himself. But if they have it so concealed that the sheriff cannot find it, of what avail is it to the creditor? If they have personal property, let them turn it over, or point it out to the sheriff; and then if he persists in selling the realty they may have some cause of complaint. [179] 8. nights of third homestead rights, not to on motion’to^ set asme a sate. The last point to be considered is this: Mrs. Treptow claims that the property was hers, and not her husband’s, and that it was her homestead, and exempt from seizure upon execution. Testimony was offered to support this claim. From that testimony it appears that the . - nr» _ n _ _ judgment before the justice was rendered May 3]^ 1871. At that time the title to the property was in Carl F. W. Treptow. On the 26th of June 1871 the abstract of judgment was docketed in the district court. Intermediate these dates, and on the 24th of June, Treptow and wife conveyed to Frederieke Belon, and on the 26th of June Frederieke Belon and husband conveyed to Mrs. Treptow. The affidavits filed allege that these conveyances were in good faith, and for a valuable consideration. One affidavit also alleges that Mrs. Treptow is occupying the property as a homestead. Upon this testimony ought the district court to have set aside the sale? Or perhaps more correctly, was there such manifest error as will justify us in reversing the ruling of that court? A question of similar import was before this court in the case of White-Crow v. White-Wing, 3 Kas., 276. In that case the decision of the district court was in favor of the motion to set aside the sale, and the supreme court sustaining the decision use this language: “But it maybe asked, where would you stop? If the showing indicated the existence of a substantial question as to the ownership between the debtor and a third person; or, if it should appear that the debtor had some sort of an interest in the property, the motion ought to be overruled. A decision either way would not affect tire ultimate right of the parties, nor be a bar to an action to determine which was the owner. It would be impossible to fix an abitrary boundary which would not in some instance work great injustice. The court must be allowed a reasonable discretion in each case in determining what shall, and what shall not be sufficient ground to set aside a sale.” Now it cannot be denied that the time and manner of these conveyances, being a conveyance from husband to wife through a third party after judg [180] ment before a justice, and just prior to the transfer of the judgment to a court in which it would be a lien on real estate, naturally raise a suspicion as to the bona fides of the transaction. True, both husband and wife in their affidavits swear that it was bona fide; but we cannot say that the district court abused its discretion when it decided to let the question go before a jury in an action of ejectment. It must be remembered that this decision on the motion is not conclusive as to the facts. If the conveyance was in good faith, and for a valuable consideration, or if the property is her homestead, these facts can be shown in defense to an action of ejectment by the purchaser. No writ of assistance runs to put him in possession. He must bring his action at law, and either party will then be entitled to a jury. We fail to see how the error, if error there was, has wrought injury to the substantial rights of the plaintiff in error. The order of the district court will therefore be affirmed. All the Justices concurring.