Where the notice of a sheriff's sale is not published for at least 30 days before the day of sale, the sale may be set aside on motion at any time before confirmation.56 Where a sheriff's sale was made to satisfy the judgments of several creditors, one of which had been previously paid, but no entry of satisfaction made nor notice given to the other creditors, the fact that such payment was made did not invalidate the sale.57 In an attachment action against a nonresident, after service by publication and without any appearance, judgment was rendered against defendant, and a writ issued, which, instead of being simply an order of sale, was a command to satisfy the judgment out of any goods and chattels of defendant, and, for want of them, out of the specific real estate attached. On such writ, a portion of said real estate was sold. It was decided that this irregularity was not sufficient to avoid the writ or the sale.58 Where lands are sold at sheriff's sale for a price so grossly inadequate as to be little more than a nominal consideration, a very slight additional circumstance indicative of bad faith on the part of the purchaser, or of a combination among bidders, will be sufficient. ground for setting aside the sale.59 When a sheriff, who has levied on real estate, sells the land, he must, except where appraisement has been waived, sell the same. for not less than two-thirds of its appraised value and, if he sells the same for less, the sale is void.0 set aside the confirmation and sale, no costs being taxed to said judgment debtor. Adams v. Devalley, 20 P. 239, 40 Kan. 486. 56 Watkins v. Williams, 5 P. 771, 33 Kan. 149. 57 Capital Bank of Topeka v. Huntoon, 11 P. 369, 35 Kan. 577. 58 Merwin v. Hawker, 1 P. 640, 31 Kan. 222. 59 Iona Sav. Bank v. Blair, 43 P. 686, 56 Kan. 430. Where land is sold at sheriff's sale a few minutes prior to the time at which the sale was advertised to take place, and at a grossly inadequate price, the sale may be set aside on motion of the defendant. Pickett v. Pickett, 3 P. 549, 31 Kan. 727. Mere inadequacy of price is not sufficient to set aside a sheriff's sale, but it may be considered with other grounds, and where the inadequacy is palpable the purchaser can only retain his advantage by showing that the proceedings are free from fault and irregularity. Jones v. Carr, 21 P. 258, 41 Kan. 329; Capital Bank of Topeka v. Huntoon, 11 P. 369, 35 Kan. 577. 60 Capital Bank of Topeka v. Huntoon, 11 P. 369, 35 Kan. 577; De Jarnette v. Verner, 19 P. 666, 40 Kan. 224. Where two-thirds of the appraised value of real estate sold at sheriff's sale On a motion to set aside a sheriff's sale, the court may allow or disallow evidence to be introduced.61 The decision is not conclusive as to the ultimate rights of either of the parties.62 A person who has filed exceptions to the confirmation of an execution sale, which exceptions have been overruled, cannot thereafter sue to have the confirmation set aside on other grounds, without alleging that he had no information as to such grounds when he filed his exceptions, and without showing that his substantial rights were affected by the confirmation.63 A sale of real estate on execution cannot be set aside on a motion of defendant, two years after confirmation, showing no reason for such delay, and presenting only such matters as were necessarily involved in the order of confirmation.64 Where the judgment creditors after a sheriff's sale paid a large amount of taxes due on the property sold, the sale should be set aside only on condition that such taxes be paid by the judgment debtor, or out of the proceeds of another sale. (Caption.) MOTION TO SET ASIDE EXECUTION SALE Comes now the above named defendant, C. D., and objects to the confirmation of the sale purported to have been had on the execu 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, within the meaning of Civ. Code, § 455. De Jarnette v. Verner, 19 P. 666, 40 Kan. 224. 61 C. Aultman & Co. v. Humphrey, 53 P. 789, 8 Kan. App. 2. 62 C. Aultman & Co. v. Humphrey, 53 P 789, 8 Kan. App. 2. Irregularities affecting a sheriff's sale may be examined in the district court, on motion to confirm the same, or to set aside the sale. Some of such irregularities may also be re-examined in the district court by proceedings under Civ. Code, §§ 568-580; and all such irregularities, so far as they are shown by the record, may be re-examined on petition in error in the supreme court; and in cases of fraud parties may have an action in the district court in the nature of a suit in equity to set aside the sale, and for such other and further relief as justice and equity may authorize. Capital Bank of Topeka v. Huntoon, 11 P. 369, 35 Kan. 577. 63 Walton v. Kennamer, 139 P. 984, 41 Okl. 675. 64 Hill v. Gatliff, 76 P. 428, 69 Kan. 179. 65 Capital Bank of Topeka v. Huntoon, 11 P. 369, 35 Kan. 577. tion herein, and to set aside and hold for naught said sale, for the following reasons, to wit: 1. That the property levied on under said writ of execution and sold herein was appraised far below its actual value, and so far below its value as to show fraud, collusion, partiality, or incompetency on the part of the appraisers, as is shown by the affidavits of and - hereto attached and made a part hereof. 2. That said property was sold at a grossly inadequate price, and that the same was worth at the time of said sale the sum of $and that the same was sold for less than two-thirds of the appraised value thereof. 3. That said sale was not advertised as required by law, in this, to wit: (Setting forth irregularities of advertisement.) day of 19—, but 19-. 4. That said sale was not held on the date on which the same was advertised to be held, to wit, on the that the same was actually held on the (Other reasons.) X. Y., Attorney for Defendant. (Caption.) ORDER SETTING ASIDE EXECUTION SALE day of Now on this 19—, comes on for hearing the motion of the defendant herein, C. D., to set aside the sale of the property taken on execution herein, plaintiff appearing by G. H., his attorney, and defendant appearing by X. Y., his attorney, and it appearing to the court that said motion should be sustained for the reason that (setting forth findings). It is therefore ordered that said sale be and the same is hereby set aside, vacated, and held for naught, and that said property be reappraised, readvertised, and resold according to law. § 1642. Waiver and estoppel Judge. Where an execution has been levied upon real estate, and appraisement thereof been made, and, without having such appraisement set aside, an alias execution is levied, and a second appraisement is had of the same property, it is too late, after a sale, confirmation, and the execution of a sheriff's deed, to challenge the sale or other proceedings on account of any irregularities in the appraisement. 66 § 1643. Collateral attack Where, under execution, certain land was sold, and on the return of the sheriff the sale was confirmed, and no appeal was taken, the execution and judgment confirming the proceedings and sale are valid against collateral attack,87 An attack by strangers on a sheriff's deed on execution sale in an action separate from that in which it was issued on the ground that out of proceeds of sale current taxes were not paid is collateral, and cannot be maintained.68 An execution, issued on a valid judgment, from a justice's court, erroneously directed a levy on certain specified property, instead of a general levy, is such that its validity cannot be attacked collaterally."9 In a collateral action a party cannot challenge an execution lev 68 Dickens v. Crane, 6 P. 630, 33 Kan. 344. Where a sheriff's sale is void for the reason that he sold the land for less than two-thirds of its appraised value, as required by Civ. Code, § 455, and only to the injury of the judgment debtor, the judgment debtor may, if he waive the invalidity of the sale, treat the sale as valid, and makes it valid by suing the sheriff for any damages which he may have sustained by reason of such irregular sale. De Jarnette v. Verner, 19 P. 666, 40 Kan. 224. Wheat in the stack, alleged to have been wrongfully seized by the sheriff, was sold at sheriff's sale, and a portion of it purchased by the brother of the alleged owner. Held, that the latter, by purchasing from the brother a part of the wheat after it had been threshed, did not estop himself from asserting the invalidity of the sale. First Nat. Bank v. Knoll, 52 P. 619, 7 Kan. App. 352. Where plaintiff's real property was sold under an execution from a court having no jurisdiction to issue it, and by an officer having no authority to sell, but the purchaser acted in good faith, and paid the officer, at the time of the sale, all that the property was worth, and plaintiff, who was present at the sale, made no protest, but gave the purchaser possession, received the proceeds, and permitted the purchaser and his grantees, for 12 years, to occupy the land, and make valuable improvements thereon, without objection, though living within two miles thereof, plaintiff is estopped from denying the purchaser's title, and from recovering the land, though at the time of the sale he did not know that the proceedings were void. Hazel v. Lyden, 32 F. 898, 51 Kan. 233, 37 Am. St. Rep. 273. 67 Dixon v. Peacock, 141 P. 429, 43 Okl. 87. 68 Clark v. Tandy, 101 Kan. 328, 167 P. 1039. 69 Pracht v. Pister, 1 P. 638, 30 Kan. 568. ied upon real estate upon the ground that it misdescribes the amount of the judgment upon which it is based after confirmation and sale." 70 That the holder of a sheriff's deed brings an action to quiet his title does not expose the deed to collateral attack for irregularities in the proceedings on which it is based.71 Where the undivided interest of the widow was sold under execution, and the purchaser brought proceedings to partition the land, irregularities in the execution and sale could not be attacked in such collateral proceedings.72 A sheriff's sale is not, after confirmation and the issuance of a sheriff's deed, void and subject to collateral attack because the owner of the judgment wrote a letter to the sheriff directing a return of the order of sale, which letter was not received until after the sale had been made." 73 § 1644. Presumption of validity Where it was alleged that the property in suit was seized by a sheriff under an execution issued out of a certain court, and directed to the officer as sheriff, and the only averment from which irregularity could be inferred was that the execution was referred to as a "supposed execution," it will be presumed that the execution was valid.74 The sale of a crop of corn passes good title as against the grantee in a sheriff's deed to the land, if, at expiration of the period for redemption, the corn is ripe in the sense that it has ceased to draw sustenance from the soil, though not fit to husk or market.75 § 1645. Recovery of amount bid A sheriff may maintain an action to recover the amount bid at an execution sale, the purchaser refusing to pay, and it is immaterial that the execution has been returned, or that the notice of 70 Dickens v. Crane, 6 P. 630, 33 Kan. 344. 71 Beeler v. Elwell, 141 P. 551, 92 Kan. 586. The judgment and execution being valid, the sheriff's deed cannot be attacked collaterally. Stetson v. Freeman, 11 P. 431, 35 Kan, 523. 72 Trowbridge v. Cunningham, 66 P. 1015, 63 Kan. 847. 73 Caldwell v. Bigger, 90 P. 1095, 76 Kan. 49. 74 Bowersock v. Adams, 41 P. 971, 55 Kan. 681. 75 Myers v. Steele, 158 P. 660, 98 Kan. 577, L. R. A. 1917C, 4. |