91 Kan. 364 | Kan. | 1914
W. H. Bowers, brought an action to foreclose a mortgage, which was resisted by Lizzie T. Jett, who asserted ownership of the land, freed from the plaintiff’s lien. The case was sent to a referee, who reported the facts in detail, and concluded that the defendant should recover. The trial court, however, gave j udgment for the plaintiff, from which- an appeal is taken.
The facts found by the referee were practically adopted by the court throughout. Some of the findings were modified, but in each instance the difference of opinion between.the referee and the court was not really as to what had taken place, but as to the legal consequences that followed. Therefore we have only to determine the rights of the parties under the established facts, which for present purposes may be thus stated:
In 1898 Allen G. Woodcock owned the land in controversy. On June 14 of that year he gave a first mortgage upon it for $1500. The next day he made a second mortgage to his son, Chester 0. Woodcock, for the expressed consideration of $2500. He died intestate March 20, 1899, his only heirs besides his wife and his son Chester being another son. The first mortgage was foreclosed in an action brought in the district court of Wyandotte county July 17, 1902, Chester O. Woodcock being a party. Judgment was rendered March 17, 1903, for $1927.50, bearing 8 per cent interest. November 16, 1900, a partition suit was begun in the court of common pleas, for the purpose of dividing the real estate among the heirs of Allen G. Woodcock. A division in kind was found impracticable, and a sale was ordered. A decree in the partition suit was rendered June 6, 1904, providing that if no party took the property at its appraised value ($3600) it should be sold by the sheriff at not less than two-thirds of the
December 16,1904, W. H. Bowers, who had acquired whatever rights Chester O. Woodcock had under the second mortgage, brought the present action for its foreclosure. He contends that the interest acquired by Mrs. Jett through her purchase of the certificate of purchase, which was issued in the first-mortgage foreclosure, merged with the title she obtained by purchase at the sale under the decree in the partition suit, and that the original second mortgage thereby became a first lien. We can not assent to this view. The doctrine of merger is equitable in its nature, and we see no sufficient reason for its application to this situation. In the partition case it might perhaps have been simpler for the court to have directed a sale of the mere equity in the property — of the property, subject to the rights arising under the first mortgage. But substantially the same result was accomplished by the sale of the property as a whole, with a direction to apply the proceeds, so far as necessary, to the first lien. Between the judgment in the partition proceedings and the sale thereon the property was sold under the fore
A formal redemption of the property from the sale on foreclosure does not appear to have been made, although the transaction as a whole doubtless amounted substantially to the same thing. Mrs. Jett was the bidder at the partition sale, and she held the certificate of purchase, to the redemption of which the amount of her bid was to be applied. The precise manner in which her preferred claim was applied to the amount of her bid is not important. The certificate of purchase was treated as a credit upon her bid. If there was a valid redemption her title is good in virtue of her purchase at the partition sale; the redemption was made in her behalf as the purchaser — the owner of the equity of redemption — and the property is no longer liable to the second mortgage. (Civ. Code, § 477.) If the proceedings are regarded as not amounting'to a redemption, then her title is good in virtue of the sale under the mortgage foreclosure. It may be suggested that in that view of the case she has not paid the amount of her bid at the partition sale. The property was in effect bid off to her at the partition sale for substantially the claim she held against it. What method was. adopted in setting the one amount against the other is not very important. We hold that in buying
A contention has been made in behalf of Mrs. Jett that the second mortgage was barred by the judgment in the action brought to foreclose the first mortgage, and also by the judgment in the partition action. In view of what has already been said, it is not necessary to determine those questions.
The judgment is reversed and the cause remanded with directions to render a judgment quieting the title of Mrs. Jett.
