Burch, J.
(dissenting) : Emmons attempted to make final settlement as administrator of his wife’s estate. Gille, who had a judgmént against Mrs. Emmons which had been allowed as a claim against her estate, objected to the final settlement and claimed that Emmons had not inventoried the money received from the sale of the real estate mentioned in the case of Gille v. Enright, 73 Kan. 245, 84 Pac. 992. The probate court approved the final account and discharged the administrator. Gille appealed. The district court reversed the order of the probate court and ordered Emmons, as administrator, to inventory the money. The court found that Gille was entitled to present to a court of competent jurisdiction the question of the ownership of the fund in controversy, but made no determination whatever of that question itself. From this judgment the administrator appeals. This court holds that the money should be inventoried and that the probate court has no jurisdiction to try the title to the fund, that is, to adjudicate Gille’s claim to it.
So far I might agree. But if the probate court had no jurisdiction to determine the validity or invalidity of Gille’s claim upon the fund and the district court did not do so how does any phase of that question reach this court by appeal, and how can this court adjudicate and hold invalid one of the defenses to Gille’s claim, that of tes judicata? This, however, seems to be the effect of the following paragraph of the opinion:
“Mrs. Emmons having died before this payment was made, and D. R. Emmons having been appointed administrator of her estate, the question is whether the money paid to him belonged to the estate of his wife or to himself personally. It is contended that this question is res judicata, but we have been unable to find from the abstract of the record any judgment, which has not been reversed or superseded by an appeal, that determines the question.” (Ante, p. 464.)
Passing by the question suggested, I find in the abstract of the record a judgment, unreversed and unsuperseded, which was presented to the district court for its consideration and which concludes Gille from making further claim to the fund. That is the judgment in the case of Gille v. Enright.
The case of Gille v. Enright was this: Land belonging to Carrie L. Emmons was sold at a foreclosure sale to Hobbs who, after the period of redemption had expired, was given a sheriff’s deed. After the sale to Hobbs, Gille, as a junior creditor, sold the land under execution on his judgment against Carrie L. Emmons, and a sheriff’s deed was given to him. Hobbs sold the land to Enright, but under a previous arrangement for an assignment of the certificate of purchase Enright’s money was to be paid to Emmons, or, as Gille claimed, to Mrs. Emmons. Gille claimed the land under his sheriff’s deed. The court held that his sheriff’s sale was void and that he took no title under the resulting deed. His remedy was to redeem from Hobbs, which he failed to do. Gille also claimed that Mrs. Emmons had, in effect, redeemed from Hobbs, but the court held that if such were the case his standing was not improved. (Gille v. Enright, 73 Kan. 245, 247, 84 Pac., 992.)
When the cause was returned to the district court. Gille amended and supplemented his answer, and prayed that if the land were given to Enright, as it was certain to be, that the purchase price in the sum of $7750, which was in escrow awaiting determination, of the litigation and which is the very fund now ordered to be inventoried, be given to him. The plaintiff, En-right, moved to strike out the allegations of the amended and supplemented answer as immaterial.. Emmons made a similar motion. These motions were overruled. Enright, Emmons personally, and Emmons, as administrator of the estate of Carrie L. Emmons, filed replies, and consequently the right of Gille to pur sue this fund under his judgment against Carrie L. Emmons was formally made an issue in the case between him and Emmons individually and between him and Emmons as administrator.
The district court made the finding and rendered the judgment which follow:
“And the court further finds: that the said defendant James M. Gille, is not the owner of said real estate, and is not entitled to the possession thereof, and is not entitled in this action to recover the proceeds or any part thereof, arising from the sale of said real estate to said plaintiff before the commencement of this action.
“It is further considered, ordered, adjudged, and decreed by the court that the said James M. Gille is not entitled to recover the amount of the purchase price, or any part thereof arising from the sale of said real estate before the commencement of this action.”
The words “any part thereof” evidently refer to such part as might satisfy Gille’s judgment. The ground of the decision clearly was that because Gille did not exercise his right.of redemption as a junior lien holder he not only lost whatever right he had to the land which became free from any claim he might assert, but lost the right to appropriate the proceeds of the sale of the land, which stood in place of the land itself, to the satisfaction of his judgment. Such I take to be the law, but whether the decision were right or wrong it has never been reversed or superseded and consequently is res judicata.
If this subject is to be considered at all I would reverse the judgment of the district court and affirm the judgment of the probate court on the ground that Gille has no concern with either the omission or inclusion of the fund in controversy in the administrator’s final account.
Mr. Chief Justice Johnston joins in this dissent.