69 P. 326 | Kan. | 1902
,The opinion of the court was delivered by
This action was begun by plaintiff in error to settle the priority of liens on a quarter-section of- land in Atchison county. The court made numerous findings of fact and conclusions of law, and adjudged the plaintiff in error to hold the eighth and last lien on the real estate in controversy, from which judgment it prosecutes error to this court. Only the pleadings, findings of fact and conclusions of law are before us.
On December 18, 1878, G. G. Means, who was at that time a married man occupying the real estate in controversy as a homestead, executed to the plaintiff in error notes to the amount of $10,000, and secured the same by a mortgage on the land. In the execution of the notes and mortgage, Malissa J. Means,- the wife of O. G. Means, did not join. Her name was forged by her husband, but of this fact the bank had no knowledge. August 18, 1894, Means and wife executed their note and a mortgage on the same real estate to W. F. "Wyman. In August, 1895, Wyman commenced his action'to recover a personal judgment against Means and wife and to foreclose his mortgage, making plaintiff in error and other parties hereto defendants.
Upon April 26, 1896, judgment was rendered in said cause in favor of plaintiff in error against Means and wife on said notes in the sum of $12,692.29, and
At the January, 1898, term of court, the cause was-tried on the issues thus joined. The journal entry of that proceeding shows that all the parties to the original action appeared ; and judgment was rendered setting aside the judgment and decree of April 26, 1896, in favor of the bank and against Mrs. Means, and canceling the notes and mortgage as to Mrs. Means. That judgment became final and was conclusive on the parties in this action.
This court has frequently held that a mortgage on a homestead which is void as to the wife is void as to the husband. After the execution of the notes and mortgages to the bank and Wyman, and before the rendition of the judgments and decrees of foreclosure of April 26, 1896, Means and family abandoned the land in controversy as a homestead. It was, .therefore, and had been some time prior to April 26, 1896,
The present action was commenced after the court below had set aside the judgment and decree as to Mrs. Means, to determine the status of the bank’s lien. After the rendition of the judgment setting aside the bank’s judgment and decree as to Mrs. Means, the bank stood in a position with reference to this land the same as if its mortgage had never existed. It had a judgment against G. G. Means, and, the homestead having been abandoned prior to the rendition thereof, its judgment was a lien on the real estate in controversy subject to all mortgage, mechanic’s, judgment and attachment liens antedating the first day of the term of court at which it was rendered.
It is contended, however, notwithstanding the bank’s judgment as to Mrs. Means had been set aside and its mortgage canceled, that, because the mortgage to Wyman was subsequent in time and on its face made subject to the mortgage of the bank, the latter’s mortgage lien is still prior to that of Wyman. This contention cannot be sustained. The recitals in Wyman’s- mortgage do not estop him from asserting the priority of his lien, after the court had set aside the pretended mortgage lien of the bank. Where a
It is also argued that, because the judgment of June 6, 1896, fixed the liens of the x’espective parties to this litigation, and because the latter judgment, which set aside the plaintiff’s judgment and foreclosure decree and canceled its mortgage as to Mrs. Means, did not disturb its lien status as decreed in the former judgment as to the other parties, therefore, as to them, it still retains its position as holding the first lien. In the decree of June 6, 1896, it was the mortgage lien of plaintiff that was decreed to be first, not its judgment lien. It was given priority because it appeared to hold the first mortgage. When later, in the same action, with all the parties before it, the court set aside this decree, as well as the mortgage upon which it stood, we are unable to comprehend what was left as the foundation for this claimed continued priority of lien.
It is contended that, as Wyman failed to issue a special execution on his foreclosure decree within one year aftex* the rendition of his judgment, under section 4914, General Statutes of 1901, he lost priority as a judgment creditor. This provision of the code has reference only to judgment-lien holders, and was not intended to apply to mortgage liens. (Jackson v. King, 9 Kan. App. 160, 58 Pac. 1013 ; affix’med in Jackson v. King, 62 Kan. 850, 62 Pac. 655.) When Wyman commenced his foreclosure action he caused an attachment to issue, which was levied on personal
.The land in controversy was sold for taxes, and, after judgment in' the foreclosure proceedings and a few days before the tax deed was due, Wyman paid the taxes. In this action the court adjudged the amount of taxes thus paid a first lien on the land, and it is claimed that this was error. This was an equitable action to adjust the priority of liens on the real estate. The tax was a lien and the payment thereof necessary to preserve the property for the lien-holders. It would have been highly inequitable as between the lien-holders to refuse to allow the taxes thus paid to stand as a lien on the real estate in which all were equally interested, and the payment of which was beneficial alike to all.
It is claimed by the plaintiff in error that the court erred in adjudging Wade’s lien to be prior to its lien on said real estate. Its contention is that, as Wade did not cause execution to issue on his judgment within one year from the rendition thereof, its judgment took precedence over the judgment lien of Wade.
Section 4914, General Statutes of 1901, provides :
“No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, shall operate as a. lien on the estate of any debtor to the prejudice of any other judgment creditor.”
It will be observed that in order to retain the priority of a judgment lien, the statute requires not only that the execution shall be issued on'the judgment, but that it shall be levied on the real estate. At the time the savings bank issued and levied its execution
There are some other alleged errors, an examination of which convinces us that they have no merit, and are too inconsequential for further reference. We are of the opinion that there is no error in the record.
The judgment of the court below is affirmed.