86 Kan. 66 | Kan. | 1911
The opinion of the court was delivered by
In 1887 the owner of the quarter -section of land in controversy, which was then vacant and unoccupied, mortgaged it for $850, and twenty-six days thereafter conveyed to the grantor of the defendants. In 1891 the land was sold under foreclosure to one-. Lincoln, who shortly thereafter conveyed to McRey-nolds, who in December, 19.05, conveyed tq-the plaintiff. No part of the mortgage has ever been paid by the mortgagor or fee owner of the land, and all taxes since-the foreclosure sale have been paid by the plaintiff or his grantors. In 1906 the plaintiff had 40 acres of the-land broken, and an adjoining owner put in a crop on. an agreement that plaintiff was to have one-third thereof, but nothing was raised. About 60 acres of' the land was fenced for pasture by the adjoining owner,, who sold -his farm in 1908 and turned over to his grantee-the fence surrounding this pasture, but the same was allowed to remain on plaintiff’s land, the grantee being-authorized by the plaintiff to use the land, who pastured the portion enclosed through the season of
At the trial the plaintiff, over objection, was per-' mitted to file an amended reply setting out in detail the claims of the plaintiff and the supposed claims of the defendants and praying for a decree quieting title. At the conclusion of the trial by the court judgment was rendered for the plaintiff for possession of the land .and for costs, but no decree was entered quieting title.
The defendant appeals and assigns as error the permission to file the amended reply and rendering judgment for the plaintiff instead of the defendants. We have examined the evidence and find that the trial ■court was warranted in holding for the plaintiff on the question of possession. While no mention was made in the pleadings or upon the trial of the proposition that the plaintiff occupied the position of a mortgagee in possession, the point is suggested in the brief, and it appears that although the mortgagor or fee owner •of the land was not made a party to the foreclosure suit, still the purchaser at the sheriff’s sale and his .grantees bought in good faith and paid a valuable con
- The amended reply changed the nature of the action from ejectment to quiet title and should not have been permitted to be filed, but as the judgment appears to have been rendered on the amended petition and not on the amended reply, and the controversy was fully litigated, the judgment should not be reversed unless substantial prejudice resulted.
Section 140 of the civil code permits the amendment of pleadings in furtherance of justice “when such amendment does not change substantially the claim or defense.” The amended petition alleged with some detail the nature of the plaintiff’s title and right of possession and specifically charged that the defendants had unlawfully and forcibly taken possession of part of the land and continued to hold the same. The amended reply set up these facts with still more detail, and also the alleged ground of the defendants’ claim, and charged that the plaintiff had paid all the taxes and charges ever since the land had been taxable, and had been in the constructive possession of the same, and that he and his grantors had been in possession for more than fifteen years, claiming ownership and paying taxes. There Was no charge of possession on part of defendants but a prayer that they might be forever barred
A petition alleging possession and equitable title and that the defendant holds the legal title in trust for plaintiff, and praying for conveyance, may be amended so as to state an action to quiet title. (Newell v. Newell, 14 Kan. 202.) A petition for damages resulting from the purchase and sale of a horse for a particular purpose may be amended to show an express warranty. (Culp v. Steere, 47 Kan. 746, 28 Pac. 987.) A petition charging damages for personal injuries by the failure of a railroad company to perform its common-law duties may not be amended after the statute has run so as to charge statutory negligence of a fellow servant without being subject to the bar of the statute. (A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093.)
An action upon a promissory note can not by amendment be changed to one upon a trust in favor of the plaintiff against the defendant, at least a refusal to permit such amendment is not error. (Jewett v. Malott, 60 Kan. 509, 57 Pac. 100.) An action for breach of an express agreement to furnish passes during the natural lives of plaintiff and wife can not by amendment be changed to one for damages for permanent appropriation of land. (Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665.) At the close of the evidence in an action of tort it was proper to refuse an amendment changing to an action on contract, the evidence having tended to prove a right thereon. (Ellis v. Fla-
An action for damages for the negligent setting out of a fire can not, after the statute has run, be changed by amendment to one for damages caused by a different fire. (Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657.) In an action for damages for breach of contract to give plaintiff employment the petition set forth a
While the quoted section of the code is to be construed liberally and in furtherance of justice, and while it is always desirable to avoid multiplicity of suits and to settle in one action the whole subject matter of any controversy (Flint v. Dulany, 37 Kan. 332, 336, 15 Pac. 208), it is not proper to permit amendments which substantially change the claim or defense. But when, as in this case, the entire controversy is litigated and each party .fully presents his side of it, and the proper judgment is rendered, no substantial harm is shown to have resulted.
Finding no material error the judgment is affirmed.