get a good title to the premises purchased by him, his remedy is to apply to the court directly to set aside the decree on that ground.20 § 1681. Title and rights of purchaser A final judgment sustaining an attachment and ordering the property sold, followed by a sale, confirmation, and sheriff's deed. to the property, are sufficient to divest the title of the debtor, and are not open to attack for irregularity by one who had obtained no lien on the property until after the confirmation of the sale.27 The rule that the purchaser of real estate at sheriff's sale acquires no right of possession until a deed is executed, is not affected by the fact that there was an unexplained failure to make a timely record of the confirmation that a motion for nunc pro tunc entry was resisted by the occupant, and that there was considerable delay in procuring the sheriff's deed. 28 The judgment creditor may not, as purchaser, obtain the same rights as a third person.29 Where an attempt is made in good faith to redeem land from a judicial sale, but by mistake the clerk accepts a less sum than is due, the court may permit the redemption to be completed after expiration of the statutory period.30 § 1682. Taxes The court may order taxes paid and this includes all taxes which have not been merged into tax titles.31 § 1683. Wrongful sale Where personalty is sold under an order based on an erroneous judgment which is not superseded and which afterwards is reversed 26 Threadgill v. Colcord, 85 P. 703, 16 Okl. 447. 27 Harrison v. Shaffer, 55 P. 881, 60 Kan, 176. 28 Haish v. Pollock, 101 P. 3, 79 Kan. 624. 29 Rev. Laws 1910, § 5176, applies only to bona fide purchasers at the sheriff's sale, not to the judgment creditor who purchases at such sale. Arnold v. Joines, 50 Okl. 4, 150 P. 130. 30 Loomis v. National Supply Co. of Kansas, 161 P, 627, 99 Kan. 279. 31 Gen. St. 1889, par. 6902, providing that, "where any real estate shall be sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order all taxes and penalties thereon against such to be discharged out of the proceeds of such sale," includes all unpaid taxes which have not merged into tax titles on the day of sale. Kerr v. Hoskinson, 47 P. 172, 5 Kan. App. 193. on appeal, an action for conversion will not lie against the plaintiff in the order of sale. A judgment, though erroneous, is the act of the court, and unless superseded it constitutes, until reversal, sufficient justification for all acts done in its enforcement.32 $1684. Validity "A void judgment may be vacated at any time, on motion of a party, or any person affected thereby." 83 A sale set for a holiday may not be held on the following day. It must be held on the day specified in the notice.31 § 1685. Foreclosure sale A foreclosure sale, which has been in all respects regular, will not be set aside for gross inadequacy of the price, unless the person who has suffered thereby at the time of the sale was under some restraint which prevented him from attending it, or unless fraud is shown.35 The purchaser at a foreclosure sale takes subject to a prior mortgage, and cannot deduct the amount thereof from his bid, or apply on such prior mortgage any surplus remaining after satisfaction of the judgment and costs. A purchaser at a senior mortgage foreclosure will be presumed to have bid and purchased with reference to a junior mortgage, if it has been recorded, and with knowledge of the junior mortgagee's right to redeem.3 37 32 State Nat. Bank v. Ladd (Okl.) 162 P. 684, L. R. A. 1917C, 1176. 33 Rev. Laws 1910, § 5274. Under Rev. Laws, 1910, § 5274, the order and confirmation of judicial sale and the sheriff's deed based on a void judgment are absolutely void. Arnold v. Joines, 50 Okl. 4, 150 P. 130. 34 A sale of land by a sheriff on a day not named in the notice of sale is illegal and should be set aside, though the day named fell on Labor Day and the sale was held the day following, though under Comp. Laws 1909, § 4065, such day is a legal holiday, and under section 2957 an act appointed by law to be performed on a holiday may be performed on the next business day. McLaughlin v. Houston-Hudson Lumber Co., 31 Okl. 182, 120 P. 659, 38 L. R. A. (N. S.) 248. 35 McLain Land & Investment Co. v. Swofford Bros. Dry Goods Co., 68 P. 502, 11 Okl. 429. 36 Streeter v. Ponca State Bank, 49 Okl. 609, 153 P. 632. 37 Horr v. Herrington, 98 P. 443, 22 Okl. 590, 20 L. R. A. (N. S.) 47, 132 Am. St. Rep. 648. A junior mortgagee has no claim, by virtue of his mortgage, upon the Where a mortgagee enters under a void judgment or a void foreclosure sale, he is merely a mortgagee in possession, having rights not adverse to the rights of the mortgagor or his grantor, but this possession will not be disturbed while the mortgage debt remains unpaid.38 An equity court having called the interested parties before it and decreed a sale of mortgaged property, may put the purchaser, in possession as against a party to the suit.39 The purchaser is entitled to all the crops which at time of sale were not severed from the soil, as against all parties whose rights have been foreclosed, whether matured or not.40 A decree of mortgage foreclosure merges the interests of the parties to the suit in the decree, and transfers and vests them in the purchaser at the sale.11 Where a person holding all of a series of notes secured by mortgage assigns one, the assignee is preferred to the assignor in the distribution of the proceeds of the mortgaged property.*2 The rule requiring the sale of disconnected pieces of land to be made separately on foreclosure is not an arbitrary one, but is surplus money arising from a sale under a senior mortgage foreclosure to which he is not made a party. Horr v. Herrington, 98 P. 443, 22 Okl. 590, 20 L. R. A. (N. S.) 47, 132 Am. St. Rep. 648. Where premises are sold under a prior mortgage, and bought by mortgagee, who resells to mortgagor, rights of assignee of the junior mortgagee, not a party, are not thereby impaired, but such resale operates as a payment of the prior mortgage. Core v. Smith, 102 P. 114, 23 Okl. 909. 38 Page v. Turk, 143 P. 1047, 43 Okl. 667. A mortgagee who enters into possession peaceably as purchaser under foreclosure cannot be dispossessed so long as the mortgage remains unsatisfied. Gillett v. Romig, 87 P. 325, 17 Okl. 324. Where a mortgagee enters into possession peaceably as purchaser under foreclosure proceedings, his grantee stands in the shoes of the mortgagee, and must be treated as the mortgagee in possession, and must account for the rents and profits derived from the land from the time he was put in possession. Gillett v. Romig, 87 P. 325, 17 Okl, 324. 39 Richmond v. Robertson, 50 Okl. 635, 151 P. 203. 40 Dixon v. Pugh (Okl.) 178 P. 880. 41 Horr v. Herrington, 98 P. 443, 22 Okl. 590, 20 L. R. A. (N. S.) 47, 132 Am. St. Rep. 648. 42 Lawson v. Warren, 124 P. 46, 34 Okl. 94, 42 L. R. A. (N. S.) 183, Ann. Cas. 1914C, 139, enforced, when necessary, to protect the rights of the debtor and. secure the best prices.13 Where, on foreclosure, the real estate is ordered sold, and the sale made without appraisement, as required by statute, it is void, and it is proper to set aside the confirmation thereof and cancel the sheriff's deed. ** Where a judgment directing sale of the mortgaged premises does not recite that same be sold without appraisement and the order of sale directs a sale with appraisement, a sale for less than twothirds of the appraised value is a nullity.*5 § 1687. Right of redemption The statutory right of redemption from a mortgage foreclosure or execution sale is a rule of property, and cannot be impaired by subsequent legislation.** A tax sale of land made at a time other than that provided by law is void.47 48 The notice must be published for three weeks prior to the sale.** The sale must be held at the place specified in the statute.‘* 43 Miller v. Trudgeon, 86 P. 523, 16 Okl. 337, 8 Ann. Cas. 739. 44 Hancock v. Youree, 106 P. 841, 25 Okl. 460. 45 Page v. Turk, 143 P. 1047, 43 Okl. 667. 46 Turk v. Mayberry, 121 P. 665, 32 Okl. 66. 47 Holt v. Spicer (Okl.) 162 P. 686. 49 A sale of land for delinquent taxes at a time not authorized by statute, is void. Perry v. Snyder, 75 Okl. 24, 181 P. 147. A tax deed, based on a sale of land for delinquent taxes at a time not authorized by Rev. Laws 1910, § 7398, is a nullity. Perry v. Snyder, 75 Okl. 24, 181 P. 147. 48 Publication of delinquent tax sale notice October 24th, 31st, and November 7th preceding the sale on November 16th held a sufficient compliance with the statute, requiring publication for three consecutive weeks. Buhler v. Hysell, 132 P. 140, 37 Okl. 392. 49 Under Sess. Laws 1909, c. 38, § 8, held, that a delinquent tax sale was void where the land was offered for sale at the front door of the courthouse, instead of at the office of the county treasurer. Davenport v. Wolf, 59 Okl. 92, 158 P. 382. § 1689. Estray sales In sales of animals under the estray laws, all provisions of same must be strictly followed; otherwise the buyer acquires no title.50 Such sale is void, where the animals are not correctly described in the notices of sale.51 The law does not look with favor on purchases by a public official.52 50 Gibson v. Linthicum, 50 Okl. 441, 150 P. 90S. (1591) |