court had full authority to declare the amount of taxes which Belz had previously paid on the land, together with the interest due thereon, a lien upon the premises, and to decree that the premises should be sold to satisfy and discharge such lien. Russell v. Hudson, 28 Kan. 99; Fairbanks v. Williams, 24 Kan. 16; Arn v. Hoppin, 25 Kan. 707; Belz v. Bird, supra.

In reference to the decree ordering a writ of possession to issue, counsel say:

"We do not contest the right of a court of equity to issue such a writ, but we do contest the right and power of any court to prejudge a case, or to order such a writ before the confirmation of a sheriff's sale. For the purpose of making such order as may be proper up to and including the confirmation of the sale, and an order for the writ of possession upon a proper application and showing after the confirmation, the court retains jurisdiction of the cause; but until that showing is made, the court should not determine the right of the parties, present and prospective, and make an order upon which the writ of assistance may be issued by the clerk. The court cannot delegate to the clerk the judicial power to determine, upon the præcipe of attorneys, whether the person against whom a final writ of possession is asked, is in possession of the premises, claiming by, through, or under defendant since the commencement of this suit. Nor can the court authorize the sheriff holding such a writ to exercise such judicial functions and determine the right of the parties, nor could the sheriff having such a writ determine any question of fact involved."

We perceive no error in the decree giving authority for the issuance of a writ of possession to assist the purchaser to the possession of the premises after the sale and confirmation, and the execution of a sheriff's deed; at least, we perceive no error in the decree prejudicial to the legal rights of the defendant below, the only party complaining. In Kershaw v. Thompson, 4 Johns. Ch. 609, it was said that "a court will enforce its decree by process for the actual delivery of possession whenever, in pursuance of the decree, such possession ought to be delivered." It is stated in 4 Kent, Comm. (13th Ed.) 192, that "upon a decree for a sale it is usual to insert a direction that the mortgagor deliver up possession to the purchaser; but, whether it be or not part of the decree, a court of equity has competent power to require by injunction, and enforce by process of execution, delivery of possession; and the power is founded upon the simple elementary principle that the power of a court to apply the remedy is co-extensive with its jurisdiction over the subject-matter." It is the practice in this state, in the foreclosing of mortgages, and in other actions for the sale of real estate to satisfy liens thereon, to provide in the decree that the defendants shall deliver up possession to the purchaser after sale, confirmation, and execution of sheriff's deed. If this clause is not contained in the decree, it is sometimes the practice to embrace it in the order of confirmation.

In any event, after a purchaser has obtained his deed under the order of the court, there cannot be any good reason why he should not be put in possession, as against the defendant, by the court which

makes the sale and transfers the title. Under the decree in this case the clerk cannot issue a writ of possession until after the sale, confirmation, and issuance of sheriff's deed. The sheriff cannot dispossess any one under the decree except the defendant, or some person in possession, claiming by, through, or under the defendant since the commencement or pendency of this action. If the defendant below, or any other person, is in possession of the premises under such rights as to be exempt from the operation of the decree, such defendant or other person has it within his power to institute a suit to restrain being dispossessed; but the purchaser ought not to be put to the trouble of instituting another suit or other proceedings to obtain possession as against the defendant. The parties in possession, claiming through or under the defendant since the commencement of the action, having any rights above the decree, are the ones to commence proceedings, if the circumstances of the case permit them so to do.

We have examined the case of Landon v. Burke, 36 Wis. 378, but as the ruling in that case seems to have been governed by certain sections of the Wisconsin statute, it is not controlling.

The order and judgment of the district court will be affirmed. (All the justices concurring.)

(33 Kan. 344)

DICKENS v. CRANE and others.

Filed April 10, 1885.

1. JUSTICE'S JUDGMENT-TRANSFER BY FILING ABSTRACT.

Where a judgment from a justice of the peace is attempted to be transferred by an abstract filed under section 119 of the justices' act, said abstract is not necessarily void for uncertainty on account of the omission of the dollar-marks before the amount of the debt and costs, nor on account of the omission of accurate punctuation points in denoting dollars and cents.

2. SAME-VALIDITY OF ABSRTACT.

Where an abstract filed was otherwise in compliance with the statute, but stated the debt 1.0212, costs 7.3,20, such abstract may be read as debt, one dollar and two hundred and twelve ten-thousandths dollars: costs, seven dollars and three hundred and twenty thousandths dollars, or $7.32; therefore, such abstract is not void. Hunt v. Smith, 9 Kan. 137.

3. SAME-EFFECT OF SALE.

In a collateral action a party cannot challenge an execution levied upon real estate, upon the ground that it misdescribes the amount of the judgment upon which it is based, after confirmation and sale.

4. SAME TIME TO ATTACK SALE.

Where an execution has been levied upon real estate, and appraisement thereof been made, and, without having such appraisement set aside, an alias execution is levied, and a second appraisement is had of the same property, it is too late, after sale, confirmation, and the execution of a sheriff's deed, to challenge the sale or other proceedings on account of any irregularities in the appraisement.

5. SAME-SHERIFF'S DEED.

Where a sheriff's deed, founded upon the judgment of a justice of the peace, and upon an alias execution issued by the clerk of the district court, recites, among other things, the issuing of a first execution on the abstract, the levy on the land, the appraisement, and no sale for want of bidders, and a return of the execution, then the filing of an amended abstract, the issuing of an alius execu

tion on the amended abstract, the levy, appraisement, and sale thereafter, such deed does not set forth different judgments, and is not, for any of said recitations, void upon its face.

Error from Johnson county.

Action by Ambrose Dickens against William Crane, James Crane, Thomas Crane, Millie Crane, and J. J. Crippen, brought August 28, 1882, in the district court of Johnson county, to partition the S. E. of section 5, township 13, range 22, in said county. The petition. alleged, among other things, that the plaintiff was the owner in feesimple of the undivided two-eighths of said quarter section. William Crane, one of the defendants, filed an answer denying the interest of plaintiff in or to any part of said quarter section. At the March term of the court for 1884, with the consent of all the parties, the case was referred to James P. Hindman, Esq., to try the issues of fact and law as between the plaintiff, Ambrose Dickens, and the defendants, William Crane et al., and the referee was directed to report his findings of fact and conclusions of law at the next term of court. It was admitted before the referee, by the plaintiff and defendants-First, that Barton Crane, at the time of his death, was the owner in fee-simple, and in the possession, of the S. E. of section 5, township 13, range 22, in Johnson county, Kansas, being the premises in controversy, and that he died intestate in 1878; second, that he left, as his only surviving heirs, eight children, to-wit, William Crane, James Crane, Thomas Crane, Susan Jane Crane, (now Susan Jane Andrews,) Samuel Crane, P. B. Crane, Carter Crane, and Frank Crane; third, that the defendants Samuel Cráne and P. B. Crane were two of the sons and heirs of said Barton Crane, deceased. The referee made his report at the June term for 1884. His findings of fact were as follows: "(1) That Barton Crane died intestate in Johnson county, in the state of Kansas, on the — day of April, 1878; that at the time of his death he was the owner in fee-simple, and in possession, of the south-east quarter of section 5, in township 13, of range 22, in Johnson county, Kansas.

"(2) That said Barton Crane left, as his only surviving heirs, eight children, to-wit, William Crane, James Crane, Thomas Crane, Susan Jane Andrews, Samuel Crane, P. B. Crane, Carter Crane, and Frank Crane.

"(3) That on the sixteenth day of November, 1874, Ambrose Dickens, the plaintiff herein, obtained a judgment against said P. B. Crane and Samuel Crane, before D. Rolfe, J. P., Lexington township, Johnson county, Kansas, for the sum of $102.12, and costs of suit, amounting to $73.20; total judgment and costs, $175.32.

"(4) That on the third day of September, 1879, plaintiff filed in the district court of Johnson county, Kansas, the abstract of said judgment set out in the evidence, and on the seventeenth day of October, 1879, filed in said court the amended abstract set out in the evidence.

"(5) That on the sixth day of September, 1879, an execution was issued by the clerk of said court on said first-mentioned abstract of judgment, directed and delivered to the sheriff of said county, and by him levied on the undivided 2-8 interest in the south-east of said section 5, township 13, range 22, in Johnson county, Kansas; that said 2-8 interest in said premises had been levied on under said former execution, appraised and advertised, and offered for sale under said execution, but not sold for want of cash bidders; that said inter

est in said lands was appraised, advertised, and offered for sale as the property of said P. B. Crane and Samuel Crane, under said alias execution, and sold pursuant to said advertisement to the plaintiff herein, for more than of its appraised value, and that said sale was confirmed by said district court, and a sheriff's deed executed and delivered to plaintiff, March 16, 1882; a true copy of which deed is contained in the foregoing evidence.

"(6) That in the year 1875 said P. B. Crane and Samuel Crane became fugitives from justice and left the state of Kansas, and that said P. B. Crane has ever since been absent from this state; that said Samuel Crane was afterwards, to-wit, at the November, 1877, term of said Johnson county district court, convicted of the public offense of grand larceny, and sentenced by said court to confinement at hard labor in the penitentiary of the state of Kansas for the term of five years; and that said Samuel Crane was confined in said penitentiary under said sentence.

"(7) That said judgment against P. B. Crane and Samuel Crane, and in favor of plaintiff, was never revived by the judgment or order of any court, and no action commenced by plaintiff to revive said judgment.

"(8) That plaintiff claims title to the undivided 2-8 of said southeast of section 5, township 13, of range 22, in Johnson county, Kansas, under said sheriff's deed.

"(9) That defendant William Crane claims title to the undivided 4-8 of said lands; to as the heir of said Barton Crane, to by conveyance of the interests of P. B. Crane and Frank Crane and Carter Crane, children and heirs of said Barton Crane.

The conclusions of law were:

"(1) That the abstract of judgment filed in the Johnson county, Kansas, district court in the case of A. A. Dickens v. P. B. Crane and Samuel Crane, September 3, 1879, was void for uncertainty.

(2) That the sheriff's sale of the 2-8 interest in the above-described lands and said sheriff's deed to plaintiff are and were void, and conveyed no title to said lands to plaintiff.

"(3) I find in favor of the defendant William Crane and against the plaintiff, Ambrose Dickens.

"To each and every one of said findings of fact and conclusions of law the plaintiff duly excepted."

Plaintiff thereupon filed his motion to set aside the report of the referee and for a new trial, upon the following grounds:

First, that the decision and report of the referee were against the evidence; second, that said decision and report were contrary to the law and the evidence; third, that the findings and conclusions of law by the referee were contrary to the law and were not supported by the evidence; fourth, for error of law occurring at the trial and excepted to by the plaintiff at the time.

The motion was overruled and the plaintiff excepted. Thereupon, William Crane moved the court to confirm the report of the referee, and to enter judgment thereon according to the findings and conclusions of law therein set forth. This motion was sustained, and judgment rendered that William Crane, defendant, have and recover of and from the plaintiff, Ambrose Dickens, his costs. The plaintiff excepted

and brings the case here.

I. O. Pickering, for plaintiff in error.

S. E. McCracken and Gill & Parker, for defendants in error.

HORTON, C. J. On November 16, 1874, the plaintiff recovered a judgment against Samuel Crane and Peter B. Crane, before a justice of the peace of Johnson county, in this state, for $102.12, and $73.20 costs. At the time of the rendition of this judgment it does not appear that either Samuel Crane or Peter B. Crane had any property with which to satisfy the same. Subsequently, and in the month of April, 1878, Barton Crane, the father of Samuel and Peter B. Crane, died intestate, seized and possessed of the quarter section of land in controversy. He left eight children surviving him as his sole and only heirs. On September 3, 1879, plaintiff filed an abstract of his judgment in the office of the clerk of the district court of Johnson county, upon which execution was issued September 6, 1879, and levied upon the interests of said Samuel Crane and P. B. Crane in the land inherited by them from their father. The land was not sold under this execution for want of bidders. On October 17, 1879, another abstract to the judgment was filed in the office of the clerk of said district court, and after the filing of this abstract-called in the record an amended or corrected abstract -an alias execution was issued December 5, 1881. This was levied upon the undivided interests of Samuel Crane and P. B. Crane in said land, which was appraised, advertised, and sold on January 26, 1882, to the plaintiff. The sale was confirmed March 6, 1882, and on March 16, 1882, a sheriff's deed was executed to the plaintiff. On August 28, 1882, this action was commenced against William Crane and the other defendants to partition the land. William Crane, in his answer, denied that the plaintiff had any interest in the same. The other defendants were in default. The referee, who reported his conclusions of fact and of law, decided that the abstract of judgment filed September 3, 1879, was void for uncertainty. The court below affirmed this ruling. The first question, therefore, in the case concerns this abstract. It was as follows:

"STATE OF KANSAS, JOHNSON COUNTY—ss.: “A. A. Dickens, Plaintiff, vs. P. B. Crane and Samuel Crane, Defendants. "In Justice Court, before Daniel Rolfe, Justice of the Peace, Lexington Township, November 16, 1874. Judgment entered for plaintiff, debt, 1.0212; costs, 7.3,20. I hereby certify that the foregoing is a full and correct abstract of a judgment rendered by me in the suit above entitled.

"DANIEL ROLFE,

"A Justice of the Peace for Lexington Township, Johnson County, Kansas." The contention of the defendant is that the abstract was not in regular form; that it did not show any amount of judgment or rate of interest; and that, as the dollar-marks and proper punctuations to denote dollars and cents were omitted, the abstract was a meaningless thing. With all this we do not concur. The abstract was somewhat defective, but was not wholly void for uncertainty, or for any other reason. The form of the abstract was in substantial compliance with the statute. Section 119, c. 81, Comp. Laws 1879.