153 P.2d 936 | Kan. | 1944
The opinion of the court was delivered by
A widow, holding a life interest in real estate, brought action to establish her ownership of certain permanent improvements and her right to remove them. The defendants, owners of the remainder title, asserted that the pleadings disclosed that the ownership of the improvements had been determined in a prior action, and they moved for judgment on the pleadings. The motion was overruled, and they appeal. The only issue is whether the interest of the parties in the improvements had become res judicata.
The material facts, alleged or admitted by the plaintiff in the pleadings, may be briefly stated. Oliver H. Boyles, a resident of Republic county, died testate in 1908. Under the terms of his will the widow, Fannie Boyles, received a life interest in all his property, consisting of considerable personal property and a quarter section of land. Cash bequests were made to a son and a daughter and
“(a) Said Fanny Boyles is found and determined to be the owner of a life estate interest therein and thereto, without power or right to sell, dispose of, convey or encumber the fee title thereto, and is in possession thereof, with the right to continue in such possession and to take and receive as her own, allí of the rents, income and profits from the use thereof for the remaining period! of her lifetime.
“(b) Said plaintiff, the Swedish-American State Bank of Courtland, Kansas, is found and determined to be the owner of the two-thirds undivided interest in remainder of the fee title to said real estate, subject only to the life interest held and owned by the defendant, Fanny Boyles.
“(c) Said defendant, Roy O. Boyles, is found and determined to be the owner of a one-third undivided interest in remainder of the' fee title to said real estate, subject only to the life interest held and owned by the defendant Fanny Boyles, . . .
“It Is Further Ordered by the Court, that the record show that as a re-*302 suit of the dismissal, without prejudice, by the defendant, Fanny Boyles, of her claim for a lien upon certain improvements upon said real estate, no adjudication relating to the same has been made by the court in this action.” (Italics supplied.)
No appeal was taken from that judgment entered on May 22, 1940.
We come to the instant action. In the latter part of 1943 Mrs. Boyles sought to remove some of the permanent improvements from the place, but notice was served upon her by Emery, one of the appellants here, who had succeeded to the bank's two-thirds interest in the remainder, that being a holder of a life interest only she had no right to sell or remove the improvements. Whereupon she brought the instant action against Emery and Roy Boyles to determine her right to the improvements.
There is no question that the action brought by the bank in 1940 was for the purpose of determining fully the interests of the respective parties in the real estate. The improvements, clearly permanent in character, had been made more than twenty-seven years prior thereto. In the absence of a contrary finding, in an equitable proceeding, they were a part of the realty and could not be sold or removed by the holder of a life interest only. -Could Mrs. Boyles withdraw her claim to the improvements clearly involved in the action by the bank in 1940, and preserve a right to adjudicate the claim at some future time by a recital in the judgment that the claim had been dismissed “without prejudice” and that “no adjudication relating to the same” was then being made? We must conclude that by her failure to assert a claim to the improvements in the prior action and by her acquiescence in a judgment which determined the unqualified titles in remainder, she surrendered any claim to the improvements aside from her right to use them during her lifetime. The very purpose of the prior action was to determine the respective interests of the widow and the holders of the remainder title. Under the judgment the bank and Roy 0. Boyles were decreed to hold an undivided two-thirds interest and a one-third interest, respectively, in the remainder of the fee title “subject only to the life interest held and owned by the defendant, Fanny Boyles.” By the same judgment Fanny Boyles was decreed to own “a life estate interest therein and thereto without power or right to sell, dispose of, convey or encumber the fee title thereto.” The judgment clearly established the life interest and the remainder interests in the fee title to the realty, including the permanent im
Whether Mrs. Boyles’ claim to the improvements which had been added more than twenty-seven years prior thereto would have been barred by the statutes of limitation if asserted in the first action, or whether they would now be so barred we need not consider.
We have many times held that when all parties are in court and the court has jurisdiction to determine all issues directly involved in the action, a judgment therein entered becomes res judicata not only as to all matters specifically and formally determined but also as to all matters which might and should have been then determined. This general rule is founded upon the sound policy of promoting a finality in litigation and of preventing litigants from being compelled to again defend in matters directly involved in a prior action. (Mydland v. Mydland, 153 Kan. 497, 499, 112 P. 2d 104, and cases there cited; Stimec v. Verderber, 152 Kan. 582, 585, 106 P. 2d 708; Levi v. Levi, 149 Kan. 234, 237, 86 P. 2d 473; Snehoda v. National Bank, 115 Kan. 836, 840, 224 Pac. 914; Naugle v. Naugle, 89 Kan. 622, 632, 132 Pac. 164.) The instant situation clearly falls within the rule and the judgment must be reversed with directions to- sustain the motion of defendants for judgment on the pleadings. It is so ordered.