91 Kan. 727 | Kan. | 1914
The opinion of the court was delivered by
In a petition for a rehearing it is strongly urged that the opinion heretofore filed does not meet the contentions of the appellants, and does not adopt a definite theory in support of the decision made. In the opinion it was said that the plaintiff could not prevail, whether or not there was a redemption from the sale under the first mortgage. The petitioner suggests that we should determine that there was or that there was not a redemption, and that his theory presents a third hypothesis — that of merger. The facts of the case are unusual; the situation presented is in some respects unique. It is not necessary that the resulting condition should be given a name. However, we are clear that what was actually done mas?- be regarded as amounting to a redemption — that the rights of the parties were the same as thojigh a formal redemption had been made. The second mortgagee was a party to the partition action in which the sale to Mrs. Jett was made. The sale purported to convey the property itself,