The Advocate and news., 1898-02-23
Kansas Court Of Appeals, Southern De-
partment, Central Division.

No. 1885,
C. M. Condor, plaintiff in error,
vs..
Lou Wood, and Lou Wood as administrator
OF the estate OF William n. Wood, de-
ceased, defendants In error.
Error from Klngman County.
REVERSED.
The opinion of the Court was delivered by
Milton, j.
Where the proceedings prior TO and at
q Sheriffs sale Of real estate were regular
and in conformity with the foreclosure
judgment and no extrinsic facts affecting
the validity Of the sale were shown In sup
port OF the motion to set the same aside:
Held, error to sustain such motion.
At the sherlff's sale on April 18th, 1892,
Condor, the plaintiff In error and mort
gagee, purchased the mortgaged land for
500, subject to a first mortgage of $3.50,
the amount due at that date on his 1udg-
ment being $l67 so, and his mortgage being
q second lien on the premises. On April
2lst ne filed a motion for confirmation Of
the sale, but on May I'd the court continued
the hearing Of said motion until the sue
ceeding September term OF court, and the
defendants for the first time appeared In
the action and orally objected to the con.
flrmation Of the sale, the sole ground OF
their objection being that Condor had been
paid his claim in full subsequent to the
date OF the sale. 1t appears that the land
had been rented as a farm during the
years 1891 and 1892, and that the receiver
In the foreclosure suit had collected rents
from said premises amounting In the ag-
gregate to $147.S6; the expenses in collect
Ing the same being Sll5O, leaving a net
balance Of $136.36. No allowance had yet
been made to the receiver for his SER
vices. The costs OF the action, including
the costs of the sale, amounted to &S.S5.
The delinquent taxes on the land amounted
to $4370. Condor had collected the rentals
accruing between the date of the sale and
the date of the hearing Of the motion to
confirm the same, the net proceeds so
collected being N5O.S.. The foregoing facts
were agreed to by the parties, and upon
these facts the court based It's decision
in oveTruling the motion to confirm the
sale. The court ordered that out OF the
funds in the hands Of the plaintiff, and
Of the receiver, the plaintiff should be
paid the amount of his judgment and the
Interest thereon; that after the costs of
the action had been paid, the balance
should be delivered to the defendants;
and that the receiver should thereupon be
discharged To this action of the court
Condor duly excepted and by proper pro-
ceedings the case Is presented 10 us for
review.
Attest: w. A. AYREs,
ISeaLl Clerk.
Kansas Court of Appeals, Southern De-
partment, Central Division.
No. $780,
The Arkansas City Bank, plaintiff in error,
vs.
Dewitt Mcdowell, defendant in error.
Error from Cowey County.
AFFIRMED
The opinion of the Court was delivered by
Dennson, p. j.
1. An allegation of the existence of au-
thOrity shall be taken as true unless the
denial thereof be verified by the affidavit
OF the party, his agent or attorney.
2. An attorney may testify that a certain
person is his client. This Is not privileged
communication.
3. The incomplete and defective allega-
tOns in the petition in this case are fully
cured by the allegations In the answer.
4. The answer and reply raise the is
sue of probable cause and want or malice
and the case was tried upon that theory
by the plaintiff in error.
Attest: w. A. AYRES,
lSeaLl Clerk.