1649. Corporate stock.

1650. Corporate franchise-Form of certificate of purchase.

1651.

1652.

Redemption of franchise.

Irregularities.

1653. Reversal of judgment.

§ 1635. Duty of officer

In case of a sale under a general execution, the sheriff does not act as the court's agent, and has no guidance but the law and takes his chance of finding and levying on property which is not exempt, as the court has not specified the property or adjudicated the lien, and has not otherwise been concerned with the sheriff's course."

§ 1636. Place of sale-Who may purchase

"All sales of lands or tenements under execution shall be held at the court-house in the county in which such lands or tenements are situated. No sheriff or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall, either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent and void." 34

33 Brewer v. Warner, 105 Kan. 168, 182 P. 411, 5 A. L. R. 385. 34 Rev. Laws 1910, § 5171.

(1542)

§ 1637. Alias execution

"If lands or tenements, levied on as aforesaid, are not sold upon one execution, other executions may be issued to sell the property so levied upon.'

1 35

§ 1638. Time of sale

A sheriff, who has levied an execution on personal property, which on the return day remains in his hands unsold for want of bidders, or want of time to advertise, or any other reasonable cause, may sell the property after the return day.

§ 1639. Notice of sale

36

"The officer who levies upon goods and chattels, by virtue of an execution issued by a court of record, before he proceeds to sell the same shall cause public notice to be given of the time and place of sale, for at least ten days before the day of sale. The notice shall be given by advertisement, published in same newspaper printed. in the county, or, in case no newspaper be printed therein, by setting up advertisements in five public places in the county. Two advertisements shall be put up in the township where the sale is to be held; and where goods and chattels levied upon cannot be sold for want of bidders, the officer making such return shall annex to the execution a true and perfect inventory of such goods and chattels, and the plaintiff in such execution may thereupon sue out another writ of execution, directing the sale of the property levied upon as aforesaid; but such goods and chattels shall not be sold, unless the time and place of sale be advertised, as hereinbefore provided." 37

"Lands and tenements taken on execution shall not be sold until the officer cause public notice of the time and place of sale to be giv

35 Rev. Laws 1910, § 5172.

An execution was levied on land, which was then appraised and advertised for sale by the sheriff. Further proceedings under the writ were enjoined by the judgment debtor, and return of the process made by the officer, reciting the facts. The defendant in execution died, and the injunction suit was dismissed. Immediately, and without revivor, an alias execution was issued, reciting the steps taken under the first one, and the land advertised and sold thereunder. Held that the alias execution performed the office of a venditioni exponas at common law, and that a sale made under it was valid. Rain v. Young, 59 P. 1068, 61 Kan. 428, 78 Am. St. Rep. 325.

36 Ireland v. Linn County Bank, 103 Kan. 618, 176 P. 103, 2 A. L. R. 184. 37 Rev. Laws 1910, § 5159.

en, for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or in case no newspaper be printed in the county, in some newspaper in general circulation therein, and by putting up an advertisement upon the court-house door, and in five other public places in the county, two of which shall be in the township where such lands and tenements lie. All sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable." 38

In sales of real estate upon execution, a notice of the sale as published in the newspaper should be given for at least thirty days before the day of sale, and should be continued in each successive issue of the newspaper up to and including the day of sale, if that is the regular day of issue of such newspaper.3

39

A notice of sale under execution, published once a week for six weeks in a daily edition, was insufficient, before the enactment of a statute in 1919, providing that it shall be sufficient to publish notices in a daily newspaper published on Thursday of each week during the required period of publication.41

Under a statute providing that lands taken on execution shall not be sold without a certain statutory notice, where the return of an officer does not show when or how long he caused such notice to be published, the sale is voidable, and will be set aside on motion."

38 Rev. Laws 1910, § 5166.

39 Watkins v. Williams, 5 P. 771, 33 Kan. 149.

Where notice of a sheriff's sale was published, as required, 30 days before the sale, but not in every issue of the newspaper up to the day of the sale, the sale was voidable. Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422; Watkins v. Williams, 5 Pac. 771, 33 Kan. 149.

40 Cherry v. City Nat. Bank, 61 Okl, 236, 160 P. 896.

41 Sess. Laws 1919, p. 131, c. 81.

42 Hazen v. Webb, 74 P. 1111, 68 Kan. 308. But where the notice of a sheriff's sale of real estate is published in a weekly newspaper for more than thirty days prior to the sale, but is not published in every issue of the paper up to the day of sale, the omission to publish in all the issues of the paper does not render the sale void to the extent that it may be treated as void in a collateral proceeding or on a collateral attack. Rounsaville v. Hazen, 5 P. 422, 33 Kan. 71.

Where the sale was to take place, and did take place, at 2 o'clock in the aft ernoon of the regular day for the issue of the newspaper in which the notice was published, and the notice was not published in that issue, and the court, on proper motion, and before confirmation, set aside the sale for that reason, held that, as all presumptions are in favor of the correctness of the decision of the court it will be presumed that the newspaper of the date of the sale

A sheriff holding an order for the sale of real estate cannot be required, by a writ of mandamus, to publish the notice of sale in a newspaper selected by the plaintiff, though the latter may have paid the newspaper in advance for the publication.*8

In sales of real estate on execution, notice by posting on the courthouse door and in five other places is necessary only where there is no newspaper printed in the county.**

§ 1640. Confirmation of sale

"If the court, upon the return of any writ of execution, for the satisfaction of which any lands or tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such lands and tenements; and the officer, on making such sale, may retain the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto, agreeably to the order of the court." 45

The sale should be confirmed, where it appears that the proceedings are regular, and no equitable grounds for setting aside the sale are shown.46

It is no part of the official duty of a sheriff to notify the execution plaintiff when a sale will be had, and the fact that he has agreed to notify him so that he may bid, and fails to do so, affords no ground for a refusal to confirm the sale at the request of the purchaser.47

Mere irregularities are cured by the order of the court confirming the sale; but matters which are not mere irregularities, or

1

was published prior to the time of the sale, and therefore that the sale was properly set aside. Watkins v. Williams, 5 P. 771, 33 Kan. 149.

43 Winton v. Wilson, 24 P. 91, 44 Kan. 146.

**McLaughlin v. Houston-Hudson Lumber Co., 31 Okl. 182, 120 P. 659, 38 L. R. A. (N. S.) 248.

45 Rev. Laws 1910, § 5167.

46 Robinson v. Kennedy, 144 P. 1002, 93 Kan. 514; Collins v. Ritchie, 2 P. 623, 31 Kan. 371; Cowdin v. Cowdin, 3 P. 369, 31 Kan. 528.

47 Keene Five-Cent Sav. Bank v. Marsh, 3 P. 511, 31 Kan. 771.

which form no part of the proceedings connected with the sale, as, for instance, fraudulent combinations which might prevent a fair and equitable sale, and matters relating to the ownership of the property sold, are not cured, nor finally or conclusively determined, by the order confirming the sale.48

An order denying confirmation will be reversed, where no reason appears from the record or is suggested by counsel why such sale should not be confirmed.49

The purchaser or assignee of the purchaser of real estate acquires such an interest in the property as to entitle him to file a motion for the confirmation of the sale, with or without the consent of the sheriff.50 The confirmation relates back to the date of sale,51

An execution sale of mortgaged land at two-thirds or more of the appraised value of the debtor's interest is valid.32

§ 1641. Setting aside sale-Form of motion and order

Where land has been sold on execution, any person claiming to be the owner thereof and interested in defeating the sale may, though not a party to the suit, move to set aside such sale.53

Neither the manner of service of summons, nor the want of the defendant's actual knowledge of the rendition of the judgment, nor the fact that the purchaser was not an entire stranger to all the proceedings in the case, nor the fact that the property was sold for much less than its value, nor the fact that the property at the time of the confirmation was worth much more than the amount of the judgment, nor all together, will authorize the sale to be set aside.+

An execution sale without notice to the creditors, at which the property was bid in by one of the judgment debtors at a grossly inadequate price, will be set aside.55

48 Capital Bank of Topeka v. Huntoon, 11 P. 369, 35 Kan. 577,

49 McDonald v. Citizens' Nat. Bank, 51 P. 289, 58 Kan. 818.

50 Payne v. Long-Bell Lumber Co., 60 P. 235, 9 Okl. 683.

51 Christy v. Springs, 69 P. 864, 11 Okl. 710.

52 Alexander v. American Nat. Bank, 54 Okl. 345, 153 P. 130. 53 Sparks v. City Nat. Bank of Lawton, 97 P. 575, 21 Okl. 827. 54 McGeorge v. Sease, 4 P. 846, 32 Kan. 387.

55 Weir v. Travelers' Ins. Co., 4 P. 267, 32 Kan. 325.

Where a sale is confirmed on motion of the judgment debtor, and it is afterwards shown by the sheriff that the debtor's wife before the sale claimed the property as her homestead, and that he has received no part of the purchase money from the purchaser, it is not error as against the judgment debtor to