Hoffman v. Meyer & Guye , 6 Kan. 398 ( 1870 )

The opinion of the court -was delivered by

Kingman, C. J.:

This is-a proceeding in error to reverse an order of the district court in the case of Clinton Cock-rill against Henry A. Becker and others, directing the sheriff to pay certain moneys- to the defendants in error, which money was the surplus proceeds of a sale made in that case.

‘i,e oresumed; shown. Each of the parties held judgments against Becker which were less than one year old, that of Meyer & Guye being the oldest, and being also for-the foreclosure of a mortgage. The court found that the mortgage of Meyer & Guye was a first lien upon the lands and tenements sold upon the execution of Cockrill, and gave judgment accordingly. Hoffman, and Rolhfing & Co., claim that the judgment was erroneous upon two grounds: First, that the lands sold under Cockrill’s judgment was a homestead, and therefore no lien attached by reason of the judgment of Meyer & Guye; second, Meyer & Guye held a mortgage upon certain real estate of Becker’s which had not been sold to satisfy the lien upon it, and therefore having a fund out of which they could make their debt they were not- entitled-to the order giving them the surplus made on the execution in favor of Cockrill.

2. Sale of morfcproceeds, _inoMGOf homestead. If every principle of law contended for by the plaintiffs in error were conceded, and if it were admitted that the estate sold under Cockrill’s execution were a homestead, still we could not reverse the judgment of the district court in this case. The record does not show all the evidence, and wo cannot indulge in far-fetched inferences. It nowhere appears from the record, even by fair inference, that the mortgage of Becker to Meyer & Guye, was not upon the ' identical property sold under Cockrill’s execution. If it were so, they had the first lien,, and the judgment was correct upon that ground. And it would not otherwise, even if the property was a homestead. There is no -showing from the record that Becker ever owned a foot of land, other than that sold, which he could mortgage.

This is a sufficient reason for affirming the decision of the district court. Judgment affirmed.

All the Justices concurring.