Hoffmire v. Holcomb

17 Kan. 378

• Court: Supreme Court of Kansas
• Decided: January 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

This was an action in the district court of Dickinson county, to foreclose a mortgage. A decree was entered, and sale made. James Hoffmire, the grantee of the mortgagor, and who held the fee at the time of the foreclosure, is the only party complaining here. On the sale, the property realized more than the claims against it. Upon confirmation of the sale the district court ordered that the surplus be paid over to Hoffmire as the owner of the fee, and it was so done. Having received such surplus, can he now question the sufficiency of the proceedings? We think not. A party cannot voluntarily appropriate the benefit of judicial proceedings, and at the same time maintain an action to have them set aside. Take the present case: Suppose on the examination of the record it should appear that there was error in the decree, or sale, and a reversal should be ordered: the money which the purchaser paid would be in Hoffmire’s possession, while the purchaser would have nothing. The only right which Hoffmire had to take the money, rests upon the assumption that a valid sale had been made. He cannot act upon that assumption, and at the same time deny its existence. Babbitt v. Corby, 13 Kas. 612.

The motion to dismiss will be sustained.

All the Justices concurring.