Martin v. Miller
Martin v. Miller
Opinion of the Court
The opinion of the court was delivered by
I. E. Martin brought an action for the foreclosure of several mortgages upon land the title to which was in Jay L. Williams. Williams was a party but did not appear.
(1) It has been said by text-writers that “the court can not bar the right of redemption when it is given by statute” (24 Cyc. 68), and that “ if the statute gives the right of redemption from a judicial sale, a clause in the decree ordering the sale, that declares that the sale shall be absolute, will not bar the right of redemption; that portion of the decree will be regarded as inoperative, and a redemption will be ordered as in other cases” (17 A. & E. Encycl. of L. 1034). The doctrine
(2) If the provision of the judgment that the period of redemption should be limited to one year was the result of an inadvertence, or of some misapprehension of the facts, it could have been corrected on the application of Williams, even after the expiration of the term, under the statute in relation to irregularities. (Civ. Code, § 596, subdiv. 3; Bank v. Ross, Ex’x, 90 Kan. 423, 133 Pac. 538.) Upon such-an application the court could have corrected the judgment and set aside the sale, or with the consent of the bidder could have confirmed the sale and fixed the time of redemption at eighteen months. As the judgment against Williams had relation merely to the enforcement of a lien against the land, the execution of the deed transferred whatever rights he had to attack the judgment to
(3) But no motion was made to set aside, modify or correct the judgment, and the order appealed from simply followed its provisions. So long as the judgment remained unchanged a sale made under it would necessarily be subject to redemption only for the period of one year therein provided. The fact that the plaintiff (who was also the purchaser) asked the court at the time of confirmation to make a further restriction upon the time allowed for redemption, by limiting it to six months, does not lessen the binding effect of the judgment.
(4) If the trial court had treated Lewis’ request as a motion to modify the judgment, and upon a finding of inadvertence or irregularity had changed the period of redemption as there fixed, from'twelve months to eighteen, its action in that regard would have been unassailable. But we can not say that it was compelled to pursue such course, or that it committed error in adhering to the terms of the original judgment, and in requiring redemption to be made, if at all, within the time there set.
The judgment is affirmed.
Reference
- Full Case Name
- I. E. Martin v. William D. Miller (P. K. Lewis, Appellant)
- Cited By
- 7 cases
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- Published
- Syllabus
- SYLLABUS BY THE COURT. 1. Mortgage — Decree of Foreclosure — Error in Period of Redemption— Valid Until Modified or Set Aside. Where a judgment foreclosing a real-estate mortgage erroneously fixes a shorter period of redemption than that allowed by the statute, it is not error for the court on confirmation of the sale to refuse to extend the limitation to the statutory period, so long as the original judgment remains unchanged. 2. Same — Method of Correcting Error im, Period of Redemption. If the part of a judgment of foreclosure which unduly limits the right of redemption is the result of inadvertence or misapprehension of the facts, the proper method for its correction is by a motion under the statute relating to irregularities, a remedy which is open to one purchasing the land after the rendition of the judgment from a defendant who was not personally liable for its payment. 3. Same ■ — ■ Error in Decree of Foreclosure ■— Can be Corrected Only in Manner Prescribed in Statute. The circumstance that the plaintiff, being also the purchaser at the sheriff’s sale, asks the court upon confirmation to shorten the time for redemption to six months, on the ground that the lien foreclosed was for purchase money (a claim found not to be sustained by the facts), does not authorize the court to disregard the terms of the original judgment and fix the period at eighteen months. 4. Same — Judicial Discretion. Although the trial court by liberality of construction might have treated a request made after sale, to fix the time of redemption at the statutory period, as a motion to correct the original judgment in that regard, the omission to do so in the present case held not to constitute error.