Phillips v. Love , 57 Kan. 828 ( 1897 )

Allen J.

1. Waiver of notice of setting case made. The first question in this case arises on the ruling of the Court of Appeals dismissing the petition in error. The objections to the record are : “That it shows no waiver on the part of counsel for plaintiffs of the suggestion of amendments, does not show that amendments were not suggested, and shows that the case-made, without amendments, was presented to the trial judge for signing and settling, and does not show that attorneys for the plaintiffs were present at the time the case-made was settled.” The motion for a new trial was overruled September 28, 1891. The defendants were given 60 days to make and serve a case, and the plaintiffs 20 days thereafter to suggest amendments. The case was served on plaintiffs’ attorneys on November 24. On December 24, which was after the time for suggesting amendments had expired, the following waiver was written on the case and signed by plaintiffs' attorneys : “We hereby consent that the foregoing case-made may be presented to the Hon. M. G. Troup, Judge of the above-named Court, for allowance and settlement this 24th day of December,1891, hereby waiving any notice of the time and place for such settlement.” Thereupon, on the 24th of December, the case was signed by the Judge, who certified, among other things, “ that said case-made is a true, full, and correct case-made in said cause, and is signed and allowed by him as such.” If the plaintiffs had any amendments to suggest, their time for suggesting them had expired. They consented that the case might be presented to the J udge on a day named, and waived any notice of the time and place. This clearly conferred authority on the judge to proceed in their absence and settle the case. If they had suggested amendments it was their duty to attend at the time of settlement and see that they were duly considered by the judge. We are not to presume either that they did, or did not, suggest amendments ; or, if they did suggest them, that'the amendments either were, or were not, incorporated in the case-made. The judge, at the time stated in the waiver, did sign the case, and certify that it was true, and the plaintiffs were bound under their waiver by whatever he did. The form of the certificate is sufficient. A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567; Mudge v. National Bank, 56 id. 353. The Court of Appeals erred in dismissing the case.

2. six-months’ stay begins from judgement of forclosure. The grounds relied on to avoid the sale were : That the order of sale was prematurely issued; that the purchaser, being the administratrix of her deceased husband’s estate, was incapacitated to purchase, and that the sale was for an inadequate price. The order of sale was not prematurely issued. More than six months had elapsed from the date of the judgment against the Harnleys foreclosing the mortgage. This judgment was rendered on the 1st of February, and the order of sale was not issued until the 11th of August. The period of the stay begins to run from the date of the judgment directing the sale. Geuda Springs Town and Water Co. v. Lombard et al., ante, p. 625, 47 Pac. Rep. 532. The judgment against the Hill estate, subsequently rendered, was a judgment for money. Hill’s executors claimed no title to, or interest in, the mortgaged property. There was no occasion for a foreclosure as against them, for a full title to the mortgaged property could have been made without Hill’s executors being parties to the suit. Their only interest in the foreclosure and sale* of the mortgaged property was in protecting their estate from liability on account of Hill’s indorsement of the note.

3. Purchase byadministratrix not void, when. 4. Confirmation of sale cannot be attacked by independent action. The purchaser at the sale, La Quincy Phillips, occupied a fiduciary relation to creditors and distributees of the estate of James Phillips. As between heirs and persons interested in that estáte she could not, to their detriment, speculate with funds belonging to the estate, but toward the Hill estate she occupied no relation of trust or confidence. They are in no position to charge her with violation of her trust. A purchase by an executor or administrator under toreclosure or a mortgage due the ° ° estate is not absolutely void as against the whole world, whether the purchase be in his individual name or as executor or administrator. Merket v. Smith, 33 Kan. 66; Beck v. Uriah, 16 Pa. St. 499; Perry, Trusts, § 127 et seq.; Briggs v. Railroad Co., 56 Kan. 526. This leaves but one remaining ground of attack — that of inadequacy of price. The property was sold for $150. There is evidence tending to show that it was worth $1,200. At the trial the plaintiffs offered in open court to bid the full amount of the judgment against the Hill estate at a resale of the property. Mere inadequacy of price, taken alone, is generally held insufficient ground for setting aside a sheriff’s sale. Means v. Rosevear, 42 Kan. 377 ; Babcock v. Canfield, 36 id. 437 ; Jones v. Carr, 41 id. 329. But where application for relief is made in due time by motion to set aside the sale, or in resistance of the motion to confirm, gross inadequacy of price is a circumstance of great weight, when taken in connection with other irregularities, if not of itself sufficient to warrant the setting aside of the sale. This, however, is a matter directly involved in the conduct of the sale by the sheriff. In this case a motion was filed to confirm the sale, and one of the counsel for the. plaintiffs testified that he saw the motion and learned of the sale before the confirmation. No reason was shown at the trial why this question could not have been properly presented when the motion to confirm the sale was heard. The question of price obtained at the sale is always one of the circumstances to be considered by the court in confirming or setting aside a sale, and the'order entered confirming 7 0 this sale was an adjudication against the on tlie question of inadequacy of price. They could not thereafter maintain an independent action to retry matters necessarily involved in the confirmation of the sale. Cross v. Knox, 32 Kan. 725 ; Capital Bank v. Huntoon, 35 id. 577. Errors committed by tbe trial court on motions to confirm or set aside judicial sales may be reviewed in this Court; and the plaintiffs appear to have had a full opportunity to contest the sale in the usual andl ordinary manner in the trial court, and might by petition in error have had its action reviewed here in a direct proceeding in the original action. Though this is, in one sense, a direct attack on the sale, it is an attack by an independent action, which leaves the order confirming the sale as an adjudication of every matter then presented to the court, or which ought to. have been presented for its determination. Though, there were some averments of fraud in the petition., they were not sustained by the proof, nor was there-any finding by the court of any such fraud.

The judgment .is reversed, and the case remanded, for a new trial.

All the Justices concurring.