Babbitt v. Corby

13 Kan. 612

• Court: Supreme Court of Kansas
• Decided: July 15, 1874
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

Plaintiff in error was with others a defendant in an action brought in the district court by defendant in error. In that action he claimed title to the premises involved in the suit, by virtue of two tax deeds. The court found against the validity of the deeds, but found that by reason thereof he was entitled to a repayment of the money paid by him therefor, and interest, and ordered such sum paid out of the proceeds of the sale of the property. To this plaintiff in error excepted, and commenced this proceeding in error to reverse such judgment. After commencing this proceeding he voluntarily accepted the amount found due and ordered paid to him. In other words, he has voluntarily accepted the benefits of a judgment which he was seeking to reverse. Defendant in error has filed a motion to dismiss this proceeding, on account of such acceptance, and we think her motion should be sustained. By voluntarily accepting the proceeds of the judgment, the plaintiff in error waived any errors, if errors there were, in it. A party who complains of a judgment must be consistent in his conduct with reference to it. If he recognizes its validity, he will not be heard to say that it is invalid. And surely there can be no clearer recognition of a judgment than is shown here. He claimed title. The court found against his title, but decreed him money. He says there was error in decreeing him money instead of title, and then voluntarily receives the money. The two are inconsistent, and having received the money he will not now be permitted to say there was error in giving it to him.

The motion to dismiss will be sustained.

All the Justices concurring.