Stetson v. Freeman

35 Kan. 523

• Court: Supreme Court of Kansas
• Decided: July 15, 1886
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

There are but two points urged here against the judgment rendered by the district court. The first of these arises upon rulings of the court in admitting in evidence the sheriff's deed, under which the defendant in error claims title, as, well as the record of the preliminary proceedings upon which the deed was founded.. Both parties claim title to the lot in controversy from the Blue Eapids Town Company. The sheriff's deed, which is admitted to be regular in form and valid upon its face, was executed on December 26, 1878, in pursuance of an execution sale made to satisfy a judgment obtained by Jane E.- Hathaway against the Blue Eapids Town Company. The plaintiffs in error claim title to the lot through a conveyance made by the Blue Eapids Town Company subsequently to the sale and conveyance by the sheriff, and on December 13, 1879. The judgment in favor of Jane E. Hathaway was obtained on March 28,1877, and after two executions had been issued upon the judgment and returned unsatisfied, a third was issued and levied upon the lot in controversy as the property of the Blue. Eapids Town Company. It is admitted that the lot was duly appraised and offered for sale, and the amended return of the sheriff is that it was sold to Jane F. Hathaway for a sum greater than two-thirds of the appraised value, she being the highest and best bidder therefor. The validity of the judgment and execution and the regularity of the sale and prior proceedings are not questioned, and it is further conceded that immediately prior to the sale and conveyance of the lot, the .title to the same was in the Blue Rapids Town Company. The objection to the sheriff’s deed is based upon the returns made by the sheriff upon the execution. It seems that W. H. H. Freeman was the attorney of Jane F. Hathaway, and was present at the sale and made a bid upon the property, as he claims, for and in the name of his client. In the return first made by the sheriff it was stated that the lot was sold to Freeman, who refused to pay the amount of his bid, and on the 15th day of November, 1878, the execution was returned unsatisfied. At the next term of court, which convened in the month of December following, Jane F. Hathaway moved the court to require the sheriff to correct his return so as to show that the property was sold to her instead of to her attorney, and that the sheriff be required to accept the sum of $146.85, which was the amount of the bid in excess of her judgment. This motion was allowed, and the amendment was made by the sheriff, as hereinbefore stated. The plaintiffs in error say that the first return was conclusive, and when filed could not be amended or corrected. This is a mistaken position. The return of the officer upon the execution is only a history of the steps taken by him in obedience to its command. It is the duty of the court to protect its process, and as the return is the evidence of what was done by the officer under the execution, and upon which the rights of the parties and the liability of the officer depend, it is important that the facts therein should be correctly stated; and if they are not, it is the duty of the court upon proper application, to permit the officer to amend his return conformably to the facts. Before the return is finally filed, it may be amended by the officer without leave; but when it has been filed and made a record of the court, it can only be changed or amended with the permission of the court. The court does not make the amendment nor change the facts, but only allows the return to be made so as to correctly evidence the facts.

The objection is made that the officer resisted the motion to amend his return, and was by the court compelled to make the amendment. What the action of the court was, can only be learned from the record of the proceedings on the motion to amend, and the amended return which was made. From these the most that is shown is, that the motion was made to amend by Jane F. Hathaway, the plaintiff in the action and purchaser of the property, who appeared by her attorney, while the sheriff appeared by his attorney, who was one of the attorneys of record for the Blue Rapids Town Company. The amendment could be made upon the application of the plaintiff or the purchaser of the property, as well as upon the application of the officer himself. For aught that appears, the application may have been made by the plaintiff upon the suggestion or request of the sheriff. At first he may have thought that the bidder must be personally present, and that Freeman, who was the agent and attorney of the plaintiff, could not bid in her name, and accordingly made the return that the lot was struck off to Freeman; or he may have misunderstood the bidder, and after investigation of the facts before the court upon the motion to amend, become satisfied that the bid was made for the plaintiff instead of for Freeman; but be that as it may, it does not appear that there was any compulsion, nor that the court dictated in any manner what should constitute the return. And even if the sheriff at first resisted the application, it will make no difference, as it appears that the return was subsequently amended by him and not by the court, and that it was made after an inquiry into the facts which presumably satisfied him that the bid was made for, and the sale made to, Jane F. Hathaway, as stated in the amended return.

It is also objected that the amendment was made without uotice to the Blue Rapids Town Company, or to the plaintiffs in error. By some of the courts it is held that the return may be amended as a matter of course, and that no notice is necessary. In Rickards v. Ladd, 6 Sawyer, 40, the court, in determining the authority of an officer to amend his return, says:

“ Strictly speaking, then, the proceeding is one between the officer and the court. It is ex'parte in its very nature; and no one has an absolute right to a notice of it. In contemplation of law the amended return is made under the same sanction and responsibility as the mistaken one. In effect it becomes the return of the case, and cannot be questioned collaterally by the parties to the action, or those claiming under them as .privies.” (Morris v. Trustee, 15 Ill. 269; Dun v. Rodgers, 43 id. 260; Wright’s Appeal, 25 Pa. 373; Kitchen v. Reinsky, 42 Mo. 427.)

There are cases holding that notice of the application to amend a return is necessary, where a long time has elapsed after the original return has been made, or the term to which the process is returnable has passed and the case has been stricken from the docket, or where a return has been made upon an execution which shows that it is satisfied and the amendment would have the effect ol; restoring the liability • of the defendant. (Coopwood v. Morgan, 34 Miss. 368; Thatcher v. Miller, 13 Mass. 271; Hovey v. Wait, 17 Pick. 197; O’Connor v. Wilson, 57 Ill. 226; Williams v. Doe, 9 Miss. 559; Freeman on Executions, § 358.)

1- amendment6’ “ouce;pía°It may generally be said that applications to amend returns are addressed to the sound discretion of the court, and are only to be allowed in furtherance of justice. If much time has elapsed since the first return, or if new rights have likely intervened, it is. necessary and proper that notice to those interested should be given; but it will be seen that this amendment was made at the succeeding term of court, and within a few days after the original return was filed. The amendment was made at the same term, but before the confirmation of the sale was made. The parties are deemed to be in court until the sale is confirmed so that no notice is necessary of a motion to confirm the sale; and it would seem that the application to amend the return of the execution sale might be made before the confirmation of the sale without a new or additional notice. In any event, the plaintiffs in error are not entitled to notice. At the time the amendment was made, they had no interest whatever in the proceedings under the execution, or in the property sold. The Blue Rapids Town Company is not complaining of the want of notice, and the plaintiffs in error cannot complain for them. They did not purchase the lot on the faith of the original return, and could not have been misled by it. When they attempted to purchase the property the amended return had been made "and filed, and therefore no notice to them of the application to amend was necessary. [Baker v. Binninger, 14 N. Y. 270.) We may rest this decision, however, upon another and the broad ground, that the judgment and execution being confessedly valid, the sheriff’s deed cannot be attacked, nor the proceedings impeached by strangers, nor by anyone in this collateral action. (Freeman on Executions', §§ 334, 339, 364, 365; Rorer on Judicial Sales, §§479, 480, 789, 1059; Herman on Executions, §§248, 249, 301, 326, p. 402; Rounsaville v. Hazen, 33 Kas. 76; Dickens v. Orane, 33 id. 344; Cross v. Knox, 32 id. 725; Pritchard v. Madren, 31 id. 38.)

„ , denoe S)3prove boundaries. The second point urged by the plaintiffs in error is, that the testimony does not support the finding of the court that the land conveyed by the sheriff’s deed is the same as that described in the petition. In the sheriff’s deed, under which Freeman claims, the land is described as lot eleven on the county road. The same description was given in the petition, but it was further described by metes and bounds. It appears that the Big Blue river runs through the city of Blue Rapids, and that having been dammed there, it affords a water power which has been largely utilized to propel machinery in mills and manufacturing establishments that have been constructed at that place. There was an irregular strip of land lying near to the dam and between what was called the county-road and the river, which was laid out by the town company as water-power lots, and designated by number, and as county road lots, among which is the lot in controversy. The plat embracing the water-power lots was regularly made and filed, but no monuments are to be found of the survey then made. The testimony in the record does not show very satisfactorily the identity and boundary of' the water-power lots, but we deem it sufficient to sustain the conclusion reached by the court. . The plaintiffs in error claim that a certain half-section line was the base line or initial point from which these lots were measured and surveyed, but there is little in the testimony to support this claim. On the other hand, the defendant in error claims that the lots were surveyed and measured from a point near the dam and bridge over the same. It appears that the tract first sold was for an oil mill, and was immediately below the dam, and is claimed to be upon lot thirteen. The adjoining tract, or what is claimed to be lot twelve, was next sold for a gypsum mill. The tract next sold was for a paper mill, and is on what was claimed to be lot ten. Upon each of these lots so sold large and substantial buildings have been ejected. It is claimed that lot eleven lies between the gypsum mill and the paper mill. Upon what is called lot eleven, and immediately north of the gypsum mill, there is a water wheel, and it appears that the Élue Eapids Town Company, while it yet owned the ground, entered into an agreement with Price Bros., who owned a foundry and machine shop on the opposite side of the county road, giving them the right to use the water wheel above mentioned, and the machinery connected therewith, and in that agreement the land upon which the wheel was located was described as lot eleven. A witness named Loban, who had resided in Blue Eapids for thirteen years, testified that he was called as an appraiser to appraise the land upon which the execution was levied, and that the land between the gypsum mill and the paper mill was appraised as lot eleven. One I). Fairbanks, an old resident of the city, testified that he was familiar with the water-power lots, and that, he was present and assisted in making a survey of them. It does not appear that this was the original survey, but it- does appear that it was made for the purpose of locating the water-power lots where the oil, gypsum and paper mills were located, and that monuments were then placed at the corner of their premises. Upon inquiry, the witness stated that the ground lying between the mills was understood to be and was called lot eleven. This testimony was objected to as incompetent, and its admission is assigned for error. The court found that there was no way to determine from the recorded plat or from .any measurement, exactly where lot eleven is or was, and that there were no monuments on the ground from which its boundaries could be ascertained with any degree of accuracy. In view of this condition of the case, and in absence of evidence of a higher and better na(,ure> we think that the testimony was admissible. It will be observed that the boundaries are public ones, which it is generally conceded may, in cases of necessity, be established by hearsay and reputation. In Boardman v. Lessees of Reed & Ford, 6 Pet. 328, the supreme court of the United States, in passing upon the admissibility of that class of testimony, stated:

“That boundaries may be proved by hearsay testimony, is a rule well settled, and the necessity and propriety of which is not now questioned. . . . Landmarks are frequently formed of perishable materials, which pass away with the generation in which they are made; by the improvement of the country and from other causes they are often destroyed; and it is therefore important in many cases that hearsay and reputation should be received to establish ancient boundaries.”

In Kinney v. Farnsworth, 17 Conn. 355, it was decided that—

“ Within whatever limits the rule of evidence as to the admissibility of imputation on the questions of boundary is restricted elsewhere, it is well settled in this state that general reputation is admissible for the purpose of showing not only public boundaries, and such as those between towns, societies, parishes, and other public territorial divisions, but also the boundaries of lands of individual proprietors.”

In support of the same view, see also Harriman v. Brown, 8 Leigh, 697; Ralston v. Miller, 3 Rand. 44; Cox v. The State, 41 Tex. 1; Conn v. Penn, 1 Pet. C. C. Rep., 496.

Under these authorities the admission of this testimony was not error. While the testimony 'upon the identity and boundaries of the lots is weak, we think it must be held sufficient to uphold the judgment of the district court, which will be affirmed.

All the Justices concurring.