Upon petition for rehearing it is contended that the sale under the last appraisement was void for the reason that it was for a less sum than two-thirds of the appraised value of the property. The statutes (Rev. Laws 1910) provide:
Section 5161. "If execution be levied upon lands and tenements, the officer levying such execution shall call an inquest of three disinterested householders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath, impartially to appraise the property so levied on, upon actual view; and such householders shall forthwith return to said officer, under their hands, an estimate of the real value of said property."
Section 5156. "* * * And if any of the lands and tenements of the debtor which may be liable shall *Page 348 be incumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement."
Pursuant to said provisions the real property in question was appraised, and the estimate of its value returned as follows:
"We find and estimate the same to be of total value of ($12,000.00) twelve thousand dollars. The said property being described and separately appraised as follows, to wit: All the right, title, and interest of John S. Alexander et al. in and to the west half of lot eight (8) and all of lot nine (9) in block forty-seven (47) in Oklahoma City, Oklahoma, as the same appears from the recorded plat thereof. To be sold subject to a prior mortgage of $2,000.00 to T.W. Williamson."
The property was sold for $7,000, Which sum, it is urged, was less than two-thirds of the appraised value. To this we cannot agree. The return specifically shows that the total value of the property without regard to the mortgage was fixed at $12,000. It is stated in the return that there was a mortgage thereon for $2,000, subject to which the sale was to be made. This was the proper method under the statute by which the value of the interest of the mortgagor in the property was ascertained and estimated at $10,000. The statute contemplated a sale alone of the land subject to the mortgage, the equity of redemption, and this interest only was in fact sold. It brought $7,000, which was more than two-thirds of its appraised value. It is urged, however, by plaintiffs in error that under the provisions of the statute the property must have brought upon the execution sale two-thirds of the $12,000, the total appraised value of the property, exclusive of the mortgage; and, to support this contention, *Page 349 our attention is directed to the case of De'Jarnette v. Verner,40 Kan. 224, 19 P. 666, an action by a mortgagor of real property against the sheriff for damages for the sale of such property upon execution in a prior suit for less than two-thirds of its appraised value. In that case the property was appraised at $1,350 and sold, subject to a supposed mortgage of $800, for $101. In the syllabus it is said:
"Where two-thirds of the appraised value of real estate sold at sheriff's sale was $901 and there was a supposed mortgage on the property of $800, and the sheriff sold the property for the sum of only $101, but subject to such mortgage, he sold the property for less than two-thirds of its appraised value."
In that case no mortgage in fact existed upon the property, and no such appraisement was made as in the instant case.
In our opinion the provisions of the statute above quoted clearly contemplate an appraisement and sale only of the rights and interests of the mortgagor debtor in the property subject to the mortgage, and it is the duty of the appraisers to ascertain and estimate, as was done in this case, the value of such interest, and a valid sale thereof is had when such interest brings two-thirds of such appraised value. The proceedings in the instant case were, in this respect, consonant with the statutory provisions, and the sale is valid. Rehearing denied.
By the Court: It is so ordered. *Page 350