Wolfert v. Milford Savings Bank

Court of Appeals of Kansas

Wolfert v. Milford Savings Bank

47 P. 175, 5 Kan. App. 222, 1896 Kan. App. LEXIS 305

CourtCourt of Appeals of Kansas

DecidedDecember 5, 1896

DocketNo. 149

StatusPublished

Cited by9 cases

This text of 47 P. 175 (Wolfert v. Milford Savings Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wolfert v. Milford Savings Bank, 47 P. 175, 5 Kan. App. 222, 1896 Kan. App. LEXIS 305 (kanctapp 1896).

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Opinion

Garver, J.

Ordinarily, mere inadequacy of price alone is insufficient to authorize the setting aside of a judicial sale. Capital Bank v. Huntoon, 35 Kan. 577, 591. But when other grounds intervene, gross inadequacy of price may be a fact of controlling consideration with the court. The purchaser at such sale has rights in which he should be protected. But his right to be assisted to the enjoyment of a great bargain or speculation is not of such a character as to override strong equities in favor of other parties. Upon the evidence presented in this case, the court found that there was not such fault or negligence on the part of the plaintiff, or its attorney, in failing to attend the sale, as should bar it from the relief asked for in its motion. In such cases, especially when the sale is set aside, the court has a discretion which should be exercised in furtherance of justice, and with due consideration for the rights of all parties. Moore v. Rye, 10 Kan. 246; Dewey v. Linscott, 20 id. 684; Fowler v. Krutz, 54 id. 622. It must be admitted that the property in this case was struck off 'at a grossly inadequate price, leaving a deficiency judgment for a large amount against the judgment debtors. Under the ruling of the court of which complaint is made, the plaintiff’s claim will be satisfied and the judgment debtors relieved of the burden of their debt. This will be accomplished without any prejudice to the plaintiff in error, except the loss of opportunity [225]*225to make a great profit at the expense of innocent parties. Under the evidence and the facts as presented to the trial court, we cannot say that any substantial error was committed.

¥e arrive at the foregoing conclusion by assuming that a complete record of the proceedings is before us, although there is nothing to show that fact outside of the certificate of the trial judge. As the errors complained of arose upon the testimony presented on the hearing of the motions, it is necessary, to warrant a review thereof, that the record affirmatively show that it is full and complete. The certificate of the trial judge alone is insufficient. Lebold v. Ottawa Co. Bank, 51 Kan. 381.

The ruling of the court sustaining the motion to set aside the sale is affirmed.

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Garver, J.

Ordinarily, mere inadequacy of price alone is insufficient to authorize the setting aside of a judicial sale. Capital Bank v. Huntoon, 35 Kan. 577, 591. But when other grounds intervene, gross inadequacy of price may be a fact of controlling consideration with the court. The purchaser at such sale has rights in which he should be protected. But his right to be assisted to the enjoyment of a great bargain or speculation is not of such a character as to override strong equities in favor of other parties. Upon the evidence presented in this case, the court found that there was not such fault or negligence on the part of the plaintiff, or its attorney, in failing to attend the sale, as should bar it from the relief asked for in its motion. In such cases, especially when the sale is set aside, the court has a discretion which should be exercised in furtherance of justice, and with due consideration for the rights of all parties. Moore v. Rye, 10 Kan. 246; Dewey v. Linscott, 20 id. 684; Fowler v. Krutz, 54 id. 622. It must be admitted that the property in this case was struck off 'at a grossly inadequate price, leaving a deficiency judgment for a large amount against the judgment debtors. Under the ruling of the court of which complaint is made, the plaintiff’s claim will be satisfied and the judgment debtors relieved of the burden of their debt. This will be accomplished without any prejudice to the plaintiff in error, except the loss of opportunity [225]*225to make a great profit at the expense of innocent parties. Under the evidence and the facts as presented to the trial court, we cannot say that any substantial error was committed.

¥e arrive at the foregoing conclusion by assuming that a complete record of the proceedings is before us, although there is nothing to show that fact outside of the certificate of the trial judge. As the errors complained of arose upon the testimony presented on the hearing of the motions, it is necessary, to warrant a review thereof, that the record affirmatively show that it is full and complete. The certificate of the trial judge alone is insufficient. Lebold v. Ottawa Co. Bank, 51 Kan. 381.

The ruling of the court sustaining the motion to set aside the sale is affirmed.

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47 P. 175, 5 Kan. App. 222, 1896 Kan. App. LEXIS 305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolfert-v-milford-savings-bank-kanctapp-1896.

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