DeJarnette v. Verner

The opinion of the court was delivered by VALENTINE, J.: Without discussing at length or in detail the various points presented in this case, we think they must be decided as follows: I. Where a sheriff holds an execution against property, and for want of sufficient personal property attempts to make the money to satisfy the judgment out of real estate, he must levy upon the land itself and not upon a mere interest therein, and he must have the land itself appraised, and sell the same without reference to any lien or incumbrance which may be upon [230] the land. It is not for him to inquire whether the land is subject to a mortgage or not. II. And when he sells the land in such a case, he must, except where appraisement has been waived, sell the same for not less than two-thirds of its appraised value. (Civil Code, § 455.) And if he sells the same for less, the sale is void. (Capital Bank v. Huntoon, 35 Kas. 578, 591, 592.) III. But where a sheriff’s sale is void for such a reason and only for such a reason, and only to the injury of the judgment debtor, the judgment debtor may if he chooses waive the invalidity of the sale, treat the sale as valid, and make it valid by suing the sheriff for any damages which he may have sustained by reason of such irregular sale; and the sheriff in such a case will not be allowed to plead his own wrong or set forth his own void sale to defeat the action. IN. Where two-thirds of the appraised value of real estate sold at sheriff’s sale was $901, and there was a supposed mortgage on the property of $800, and the sheriff sold the property for the sum of only $101, but subject to such mortgage, he sold the property for less than two-thirds of its appraised value. V. Where a sheriff’s sale of real estate has been made, and the owner thereof moves to set aside the sale for the reason that the property was not sold for two-thirds of its appraised value and for other reasons, and the motion is overruled by the court and the sale confirmed, he does not thereby waive his right to afterward treat the sale as void, or to sue the sheriff for any injury which he may have sustained by reason of such sale. By being a party to a motion to set aside or confirm a sheriff’s sale, which motion is decided against such party, he does not thereby, and for the future, waive or cure-anything of substance, but only irregularities. (Capital Bank v. Huntoon, 35 Kas. 577, 587, et seq.) YI. Where a sheriff levies upon and sells real estate in a case where appraisement has not been waived, and where the subsequent proceedings are such that the title to the property [231] passes from the execution debtor to the purchaser, the judgment upon which the execution was issued must, if more than two-thirds of the appraised value of the land, be considered as satisfied up to the extent of two-thirds of the appraised value of the land; and if the judgment is less than two-thirds of the appraised value of the land, then the judgment must be considered as wholly satisfied. VII. Where real estate subject to a mortgage is sold at sheriff’s sale in a case where appraisement has not been waived, and is sold for less than two-thirds of its appraised value, but is sold subject to the mortgage, and the sheriff is afterward sued by the execution debtor for making such irregular sale, the sheriff may set off or recoup in reduction of the plaintiff’s damages and up to the amount of such damages, an amount equal to the amount of the judgment upon which the execution was issued, and the amount actually paid by himself or purchaser to satisfy or reduce the mortgage; and this for the reason that the plaintiff in the action may not recover more than he has actually been injured. The execution debtor in such a case has two remedies: (1) to treat the sale as void; (2) to sue the sheriff for his damages, and if he elects to pursue the latter remedy, he can recover only his actual damages. VIII. In such a case the burden of proving that the property is subject to a mortgage, and the amount thereof, and the amount paid thereon, rests upon the sheriff. IX. Where two-thirds of the appraised value of the land in such a case is equal to or more than the amount of the judgment, but the land is sold for less than two-thirds of the appraised value and less than the judgment, and the final proceedings are such that the title to the land passes from the execution debtor to the purchaser; the execution creditor must look to the sheriff for the satisfaction of the remainder of his judgment. In this case it has not been shown that any mortgage actually existed upon the land, or that either the sheriff or the purchaser has ever paid anything on such mortgage. [232] The judgment of the court below will be reversed, and the cause remanded for further proceedings. All the Justices concurring.