Mills v. Pettigrew

The opinion of the court was delivered by PIortoN, C. J.: After the Leavenworth, Lawrence & Galveston Railroad Company obtained its title to the land in controversy from the United States, Henry Tidman obtained his deed from the Leavenworth, Lawrence & Galveston Railroad Company, and B. S. Henning, the receiver of the company. The receiver was appointed March 5, 1875, in an [575] action then pending in the United States circuit court for the state of Kansas, wherein the Farmers’ Loan and Trust Company was plaintiff and the Leavenworth, Lawrence & Galveston Railroad Company was defendant, to foreclose a mortgage long prior to that time executed and delivered by the Leavenworth, Lawrence & Galveston Railroad Company to the Farmers’ Loan and Trust Company. Pettigrew holds under Tidman and wife. The judgment of W. J. Richards was rendered July 5, 1876, more than a year after the appointment of the receiver. The contention of James Mills that his title to the premises is superior, either' in law or equity, cannot be sustained. He bases his contention upon the ground that D. E, Petti-grew and his prior grantor, Henry Tidman, are estopped by their action commenced September 3, 1881, to enjoin the sale of the premises upon the judgment in favor of Richards, and also by their filing a motion to set aside the sale of the premises made by the sheriff upon an execution issued upon that judgment. The action to enjoin the sheriff’s sale was dismissed for the want of prosecution only; it was not decided upon its merits, or upon any hearing. It was therefore no bar. (Smith v. Auld, 31 Kas. 262, and cases there cited.) The overruling of the motion to set aside the sale was not conclusive on the parties making the motion. (Benz v. Hines, 3 Kas. 386; White-Crow v. White-Wing, 3 id. 276; Rice v. Pointer, 15 id. 269; Harrison v. Andrews, 18 id. 535; Capital Bank v. Huntoon, 35 id. 577, 587, 588.) The judgment of the district court will be affirmed. All the Justices concurring.