Sec. 159. Where sale must take place-Officer or appraiser may not purchase-Persons in trust relations

may not bid at their own sales.

All sales of lands or tenements under execution must be held at the courthouse, in the county in which such lands or tenements are situated. No sheriff or other officer making the sale of the property, either personal or real, nor any appraiser of such property, can, either directly or indirectly, purchase the same, and every purchase so made shall be considered fraudulent and void.92

A guardian, administrator, executor, assignee, trustee, or anyone occupying a trust relation to the real estate sold by, or under a judicial decree, cannot buy any real estate which he sells by such order of the court. And the good faith or bad faith of the purchaser does not enter into the question. When it comes to the court that any such person has purchased real estate at his own sale, the sale will be set aside without further proof.93

Sec. 160. Alias execution.

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

94

Sec. 161. Procedure where several executions are issuedCreditors may direct several levies.

In all cases where two or more executions are put into the hands of any sheriff or other officer, and it is necessary

92 Snyder, 5,987; Wilson, 4,653; Kansas, 4,908 (1901), identical; Nebraska, 1,505 (1907), identical; Smith v. Burns, 8 Kan. 198.

93 Caldwell v. Caldwell, 45 O. S. 513; Barrington v. Alexander, 6 O. S. 189; Droone v. Fanning, 2 Johns. Ch. 252; Sheldon v. Newton, 3 O. S. 495; Piatt v. Longworth, 27 O. S. 159; Welsch v. Perkins, 8 Ohio, 52; Riddle v. Roll, 24 O. S.

572; Mitchell v. Dunlap, 10 Ohio,

117.

94 Snyder, 5,988; Wilson, 4,654; Kansas, 4,909 (1901), identical; Nebraska, 1,506 (1907), identical; Ohio Gen. Code, Sec. 11,697 (1910), identical; First National v. Farmer, 61 Kan. 620, 60 Pac. 324; Rain v. Young, 61 Kan. 428, 59 Pac. 1,068; Ritchie v. Higginbotham, 26 Kan. 645; Burchett v. Clark, 64 N. W. (Neb.) 1,113.

to levy on real estate to satisfy the same, and either of the judgment creditors, in whose favor one or more of such executions are issued, require the sheriff or other officer, to levy such executions, or so many thereof as may be required, on separate parcels of the real estate of the judgment debtor or debtors, giving to the officer making the levy on behalf of the creditors whose execution may, by the provisions of this chapter, be entitled to a preference, the choice of such part of the real property of the judgment debtor or debtors, as will be sufficient, at two-thirds of the appraised value, to satisfy the same; and in all cases where two or more executions, which are entitled to no preference over each other, are put into the hands of the same officer, it is made the duty of the officer, when required, to levy the same on separate parcels of the real estate of the judgment debtor or debtors, when, in the opinion of the appraisers, the same may be divided without material injury; and if the real property of such debtors will not be sufficient, at two-thirds of its appraised value, to satisfy all the executions chargeable thereon, such part of the same shall be levied on, to satisfy each execution, as will bear the same proportion in value to the whole, as the amount due to the execution bears to the amount of all the executions chargeable thereon, as near as may be, according to the appraised value of each separate parcel of said real property.95

Sec. 162. When one other than the officer making the sale may execute the deed.

If the term of service of the sheriff or other officer who has made, or shall hereafter make sale of any lands and tenements, shall expire, or if the sheriff or other officer shall be absent, or be rendered unable by death or otherwise, to make a deed of conveyance of the same, any succeeding sheriff or other officer, on receiving a certificate from the

95 Snyder, 5,989; Wilson, 4,655; Kansas, 4,910 (1901), identical;

Ohio Gen. Code, Secs. 11,698 and 11,699 (1910), identical.

court from which the execution issued for the sale of said lands and tenements, signed by the clerk, by order of said court, setting forth that sufficient proof has been made to the court that said sale was fairly and legally made, and on tender of the purchase money, or if the same or any part thereof be paid them, on proof of such payment and tender of the balance, if any, may execute to the said purchaser, or purchasers, or his or their legal representatives, a deed of conveyance of said lands and tenements so sold. Such deed shall be as good and valid in law, and have the same effect as if the sheriff or other officer who made the sale had executed the same.98

Sec. 163. The remainder of the proceeds of sale to be returned to defendant.

If, on any sale made as aforesaid, there be in the hands of the sheriff or other officer, more money than is sufficient to satisfy the writ, or writs of execution, with interest and costs, the sheriff or other officer is required, on demand, to pay the balance to the defendant in execution, or his legal representative.97

Where, upon foreclosure proceedings, a mortgagor sells land, and the sheriff then makes a sale thereof, the proceeds of the sale, after the satisfaction of the mortgage and costs, should be paid to the debtor's purchaser. 98 Where land is sold by the sheriff under execution, and more money is paid than necessary to satisfy the execution, the excess belongs to whoever owns the land, and, when it is paid into court as part of the proceedings of the action in which the then owner is not a party, an order of the court disposing of such money without notice to, and without the knowledge or consent of

96 Snyder, 5,990; Wilson, 4,656; Kansas, 4,911 (1901), identical; Ohio Gen. Code, Sec. 11,700 (1910), identical. Sale made by undersheriff, sheriff may make deed. Ogden v. Walters, 12 Kan. 283.

97 Snyder, 5,991; Wilson, 4,657; Kansas, 4,912 (1901), identical; Ohio Gen. Code, Sec. 11,701 (1910), identical.

98 Butler v. Crag, 29 Kan. 205; Jenkins v. Mosier, 22 Kan. 562.

the then owner of the lands, is without jurisdiction, and void.99

Sec. 164. The reversal of the judgment does not defeat title of the purchaser.

If any judgment, or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal will not defeat or affect the title of the purchaser or purchasers; but in such cases, restitution must be made by the judgment creditors of the money, for which such land or tenements were sold, with lawful interest from the day of sale.1

Where a case is prosecuted on error to reverse a judgment, but no supersedeas bond is given, the judgment creditor's title becomes absolute.2

An order of confirmation is so far final that a purchaser from a party to such order, is not bound by a subsequent revocation thereof.3

Sec. 165. When the lien expires in case no execution issues— The lien when mandate issues from the Supreme Court-When property may be re-appraised and

sold.

No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, will operate as a lien on the estate of any debtor, to the prejudice of any other judgment creditor.

99 French v. Poole, 111 Pac. 488. 111 Pac. 488.

1 Snyder, 5,992; Wilson, 4,658; Kansas, 4,912 (1901), identical; Nebraska, 1,510 (1907), identical; Ohio Gen. Code, Sec. 11,702 (1910), identical; see, also, Smith v. Burnes, 8 Kan. 198; Mills v. Ralston, 10 Kan. 160; Hubbard v. Ogden, 22 Kan. 671; Howard v. Entrekin, 24

Kan. 429; Sheldon v. Preussner, 52 Kan. 593, 35 Pac. 204.

2 Reuge v. Brown, 45 N. W. (Neb.) 271; Manful v. Graham, 76 N. W. (Neb.) 19. As to what parties may demand restitution after judgment and sale, see Nelson v. City, 96 N. W. (Neb.) 288.

3 Hollister v. Maine, 58 N. W. 1,126.

But in all cases where judgment has been or may be rendered in the Supreme Court, and a special mandate awarded to the district court to carry the same into execution, the lien of the judgment creditor shall continue for one year after the first day of the term of the district court to which such mandate is directed. Nothing in this paragraph contained shall be construed to defeat the lien of any judgment creditor who shall fail to take out execution and cause a levy to be made, as herein provided, when such failure shall be occasioned by appeal, proceedings in error, injunction, or by vacancy in the office of sheriff, or the disability of such officer, until one year after such disability shall be removed. In all cases where real estate has been or may be hereafter taken on execution and appraised and twice advertised and offered for sale, and shall remain unsold for the want of bidders, it is the duty of the court from which such execution issued, on motion of the plaintiff, to set aside such appraisement, and order a new one to be made, or to set aside such levy and appraisement and award a new execution to issue, as the case may require.*

An appeal to the Supreme Court, in the absence of a supersedeas bond, does not lengthen the life of the judgment lien."

4 Snyder, 5,993; Wilson, 4,659; Kansas, 4,914 (1901), identical; Nebraska, 1,511 (1907), identical; see, also, Larmie v. Schilling, 25 Kan. 92; Scroggs v. Tritt, 23 Kan. 182. As to effect of appeal, see Kingsley v. Bagsley, 2 Kan. App. 23, 41 Pac. 991. A personal judgment against a mortgagor in an action to foreclose a mortgage, becomes a lien on all the real estate of the judgment debtor in the county, and is superior to the lien of a prior judgment against the

same defendant on which no execution has ever been issued, where more than one year had elapsed from the date of its rendition to the first day of the term of the court in which the personal judg ment was rendered in the foreclosure proceedings. Thompson v. Hubbard, 3 Kan. App. 714, 44 Pac. 1,095; but see Jackson v. King, 62 Kan. 850, 62 Pac. 655.

5 Harvey v. Godding, 109 N. W. (Neb.) 220.