49 Kan. 504 | Kan. | 1892
The opinion of the court was delivered by
This was an action brought in the district court of Wyandotte county on May 11, 1889, by Robert Garrett and D. J. Griest against Thomas B. Bowling, sheriff, and the Badger Lumber Company, to perpetually enjoin the defendants from selling certain real estate upon execution. The defendants demurred to the plaintiffs’ petition, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled, and the defendants electing to stand upon their demurrer, judgment was rendered in favor of the plaintiffs and against the defendants, in.accordance with the prayer of the plaintiffs’ petition; and the defendants, as plaintiffs in error, bring the .case to this court for review.
It appears that on June 5, 1888, the June term of the district court of Wyandotte county commenced. On that day, and prior thereto, Ered. M. Cox was the owner of the real estate now in controversy, which real estate was, however, subject to a mechanic’s lien held by the plaintiffs amounting to $2,380, and subject to three mortgage liens aggregating $4,346.52. At that time, and prior thereto, the plaintiffs were partners, doing business under the firm-name of the Wyandotte Lumber Company; and the defendant, the Badger’ Lumber Company, was and is a Missouri corporation. On that day, and prior thereto, the plaintiffs had an action pending in the district court of Wyandotte county against Cox to foreclose the aforesaid mechanic’s lien; and the Badger Lumber Company also had an action pending in said court against Cox for about $2,344. But there is no pretense that the Badger Lumber Company had any lien upon the property at that time. On June 7, 1888, the plaintiffs and Cox settled their affairs, and as a result of such settlement Cox, in consideration of the aforesaid mechanic’s lien and of the aforesaid mortgages which the plaintiffs agreed to pay, conveyed
Before proceeding further, we might state that the plaintiffs’ petition does not state that the action of the Badger Lumber Company against Cox was pending in the district court of Wyandotte county on June 5,1888, nor does it state that the June term of such court continued until September 8, 1888, when the Badger Lumber Company’s judgment against Cox was rendered; and if such action was not pending on June 5, 1888, or if the said judgment was not rendered at the June term of
We would also state, before proceeding further, that the plaintiffs’ mechanic’s-lien statement was filed on December 29, 1887, and if the lien had not been discharged except by lapse of time, it would have continued to be a valid and subsisting lien for at least one year after the statement was filed, and might have continued to be a valid and subsisting lien for any greater period of time, providing a promissory note, not to become due for such greater period of time, had been given for the amount. (Mechanic’s Lien Law of 1872, § 4; Mechanic’s Lien Law of 1889, § 5.) The Badger Lumber Company’s judgment was rendered before the expiration of the year, and the June term of the district court in 1888 must also have
Also, before proceeding further, we would state “ that the judgment lien cannot attach to a mere naked legal estate, when the entire equitable estate is vested in some third person. And in no case will the judgment lien attach to any interest greater than the judgment debtor himself possesses in the land.” (Harrison v. Andrews, 18 Kas. 535, 541, 542, and cases there cited. “The judgment lien attaches merely to the interest of the judgment debtor in the land, and to nothing more. (Civil Code, §419.) Every equity belonging to other persons will be protected by the courts. A judgment creditor is never considered as a bona fide purchaser, or even a purchaser at all.” (Harrison v. Andrews, supra. See, also, Holden v. Garrett, 23 Kas. 98.)
We would also state that the Badger Lumber Company was not a party to the action brought by the plaintiffs against Cox to foreclose their mechanic’s lien, and it had no right to be a party to such action; for it did not have, nor even claim to have, any lien upon the property in controversy until more than three months had elapsed after the plaintiff’s action had been dismissed, and until September 8, 1888. At the time when the plaintiffs’ foreclosure action was dismissed, they could not have foreclosed their mechanic’s lien as against the Badger Lumber Company, nor even have made such company a party to the foreclosure action. Hence, if the plaintiffs’ foreclosure action had been prosecuted to final judgment, and the judgment obtained before September 8, 1888, and the property sold thereunder to satisfy the mechanic’s lien, the purchaser would undoubtedly have obtained a good and valid title, free and clear from all claim of the Badger Lumber Company. Then why might not the plaintiffs, instead of prosecuting their action to final judgment at great cost and expense, settle their affairs with the defendant Cox, and take the property in payment of their mechanic’s lien, free and
The only distinction between the two cases is this: If the plaintiffs’ action had been prosecuted to final judgment, only so much of the property would have been sold as would satisfy the liens upon it, and any surplus arising from the sale after satisfying the liens would have gone to Cox or to any of his creditors who might be entitled to it, while the compromise and settlement between the plaintiffs and Cox, and the conveyance by Cox to the plaintiffs, left the property subject to any judgment lien which might be procured against it at a term of the court then being held, and in an action pending at the commencement of the term. But the Badger Lumber Company’s judgment lien attached only to the rights and interests of Cox in and to the property, and to nothing more. It lefc the property subject to all the prior liens, the mechanic’s lien and the mortgage liens, and they have certainly not been extinguished for the benefit of the Badger Lumber Company. Certainly, by their extinguishment, so far as they have been extinguished, neither Cox nor the Badger Lumber Company has procured any enlargement of his or its rights or interests in or to the property in controversy. But these liens have not been extinguished so far as the rights of the plaiutiffs are concerned. Cox parted with all his rights and interests in and to the property before they were extinguished, and the Badger Lumber Company’s lien is upon no greater interest than Cox possessed. The Badger Lumber Company, however, makes a claim upon the following statement, found in the plaintiffs’ petition, to wit: “All of the real estate in said lien described, including that conveyed to plaintiffs, was
“If any of the lands and tenements of the debtor which may be liable shall be encumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold subject to such lien or liens, which shall be stated in the appraisement.” (Civil Code, §448, as amended in 1887.)
The sheriff, however, in this present case, at the instance of the Badger Lumber Company, has levied upon, has had appraised, has advertised for sale, and will sell if not prevented, a greater interest in the property than Cox had when he conveyed the property to the plaintiffs. Have the plaintiffs no remedy, or will injunction lie? As to subrogation, see the cases of Crippen v. Chappel, 35 Kas. 495, 499; Yaple v. Stephens, 36 id. 680. In the first of the above cases it is said:
“ Generally where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in place of the creditor, such person will be so substituted.”
See, also, with regard to mechanics’ liens and preventing a merger, the case of Construction Co. v. D. & St. P. Rld. Co., 46 Iowa, 406. In that case it is decided as follows:
“ When the holder of a lien acquires the legal title to the property upon which it rests with the intention that the lien should not be merged therein, the intention of the lien holder will prevail, as against junior incumbrancers.” (Syllabus.)
“A court of equity will keep an incumbrance alive or consider it extinguished, as will best serve the purposes of justice and the actual and just intention of the parties. The intention is the controlling consideration, and to arrive at this the court will look into all the circumstances of the case.
“If a mortgage is the eldest lien, and is for an amount equal to or exceeding the value of the mortgaged premises, aud the mortgagee, to avoid the expense of foreclosure, takes a conveyance from the mortgagor, a court of equity will not permit the mortgaged premises to be swept away from him by a junior judgment creditor, without payment of the mortgage, under the pretense that its lien has been lost by merger, but will enjoin the sale at law, or restrict the judgment creditor’s lien to the equity of redemption.” (Syllabus.)
In the case of Brooks v. Rice, 56 Cal. 428, it is decided as follows:
“A conveyance of mortgaged premises by a mortgagor to a mortgagee, made in satisfaction of the mortgage, and for the purpose of avoiding the expense of a foreclosure, held, where there was an intervening mortgage, not to operate a merger.” ( Syllabus.)
In the case of Hanlon v. Doherty, 109 Ind. 37, it is decided as follows:
“Even when the fee in the mortgaged property has been vested in the mortgagee by a conveyance from the mortgagor, and the mortgage has been released, it will still be upheld, whenever it is for the interest of the mortgagee, by reason of some intervening title or other cause, that it should not be regarded as merged.” (Syllabus.)
It follows from the foregoing views, that the decision of the court below in overruling the defendants’ demurrer to the plaintiffs’ petition was and is correct,and it will be affirmed; but we would think that the final judgment of the court below, after overruling the demurrer, was broader than it should have been, and it will be modified in accordance with the views herein expressed.