20 Kan. 462 | Kan. | 1878
Lead Opinion
The opinion of the court was delivered by
This was an action to foreclose a note and mortgage. Plaintiff in error was made a defendant. It was not alleged that she executed the note, or the mortgage, or was in any manner privy to them. On the contrary, the only allegation in the petition touching her was in these words:
“And the plaintiff further says, that on the 13th of April 1874, Maggie Reynolds and Charles T. Reynolds fraudulently and corruptly made, executed and delivered their certain deed in writing conveying the said premises to the said Bridget Bradley, who now claims ownership of the said premises, which said last-mentioned deed was duly recorded in the office of register of deeds in said county of Montgomery on the 13th of April 1874, in book G of deeds, at page 95.”
The mortgage was alleged to have been executed and recorded 17th February 1873. There was nothing to show what title, or whence derived, was in Reynolds, and ho allegation that Bridget Bradley’s claim of ownership was not well founded, except such as might be implied from the
Three errors are alleged. First, in overruling the motion. Second, in trying the question of title paramount in an action to foreclose a mortgage; and third, in holding that the mortgagor’s title was in fact paramount to that of plaintiff in error. Of these in their order.
That under the old practice, title paramount could not be tried in an action to foreclose a mortgage, cannot be doubted; and such seems to be the rule in states where the code practice obtains, and separate law and equity tribunals have ceased to exist. A reference to a few of the authorities will make this plain. In San Francisco v. Lawton, 18 Cal. 465, it was held, that adverse titles were not proper subjects of determination in a foreclosure suit. To the same effect, Cragan v. Minor, decided by same court, 6 Central Law Journal, 354. In Banning v. Bradford, 21 Minn. 308, the court decided that a mortgagee cannot maintain an action against one claiming by title adverse, and, if valid, paramount to that of the mortgagor. In McCormick v. Wilson, 25 Ill. 274, it was said, that where the allegation in the petition is of title subordinate to the mortgage, a decree on default affects no title or interest not subordinate thereto. In Eagle Fire Ins. Co. v. Lent, 6 Paige, 635, the chancellor held that a mortgagee has no right to make a person whose claim is prior to the mortgage, and who holds a legal title adverse to the mortgagor and mortgagee, a party to try the validity of such title. To the same
On the other hand, it cannot be questioned that the practice has been quite common in this state to bring in as parties defendant, in a foreclosure suit,-all who claim any interest in the mortgaged premises, whether subordinate, or adverse, to the mortgagor’s title. Especially has this been true in cases of tax deeds, whose validity has been a subject of frequent litigation in such actions. In an early case in this court, Bayer v. Cookerill, 3 Kas. 282, it appeared that the legal title in Bayer had been in the district court held subordinate to the equitable title of the mortgagor, and a decree of fore
The question is one of statutory construction; for that the legislature has power to authorize the litigation of adverse titles in foreclosure actions, cannot be doubted. That such joinder tends to confusion, by multiplying the issues, or that it enhances the value of judicial sales by presenting the property stripped of all embarrassing questions of titles and claims, are matters for legislative rather than judicial consideration. So also are the suggestions, that in recognizing such a procedure we are no longer walking super antiquas vias; or conversely, that it harmonizes with the general policy of the code, which aims to have the whole subject-matter of any controversy settled in a single action. The code, section 83, authorizes the joinder of several causes of action, whether legal, or equitablej or both, where they arise out of “the same transaction, or transactions connected with the same subject of action;” “but the causes of action so united, must * * * affect all the parties to the action, except in actions to enforce mortgages or other liens.” We had occasion to examine this section with some care in the case of Scarborough v. Smith, 18 Kas. 399, where we held it authorized the uniting of a cause of action for the recovery of real property, one for rents and profits, and one for partition. Is the title to land mortgaged, so connected with the mortgage, that they can be said to be transactions connected with the same subject of action? An action on a note and mortgage involves two things — first, an inquiry as to the amount due on the note; and in that, it is personal; and second, a proceeding to charge the real estate mortgaged with the payment of the amount found due; and in that respect it is in the nature of a proceeding in rem. Ogden v. Walters, 12 Kas. 294. So far as the mere personal
It will be borne in mind that the right of a mortgagee to have other lien-holders made parties, is not the right of two lien-holders to unite and foreclose their separate liens in one action. It is the right of the single lien-holder to bring in, as parties defendant, other lien-holders, and litigate, as against them, the validity and extent of their alleged liens. He unites with his cause of action on his mortgage, and for establishing his own lien, a cause of action against the other lien-holders to contest their claims. The nature of the issues, and the extent of the controversy, may be no more difficult or greater in litigating adverse titles, than' in contesting other liens. Suppose that A., a mortgagee, brings his action to
To conclude upon this question, it seems to us, that a foreclosure suit is, as to one branch, in the nature of a proceeding in rem; that the aim and scope of such a proceeding is to seize the rem and convey it, discharged of all claims and liens; that the objections formerly existing to the adjudication of adverse titles, on account of the jurisdiction of the court, and the form of action, have been done away with; that the litigation of an adverse title, is as truly and closely connected with the right to subject the real estate to the payment of the plaintiff’s mortgage, as the determination of the validity and extent of other liens, and that the joinder of the two is therefore authorized by the statute. We come to this conclusion with hesitation, because of the course of decision elsewhere; but it seems to us justified by the statute, and it upholds a practice which has become common in this state.
The validity of this patent to Wilson, is challenged on several grounds. It is said that it is void upon its face, because purporting to be issued under authority of a statute no longer in existence. It recites that it is issued in accordance with the provisions of an act of 1864, entitled “an act to provide for the sale of school lands,” etc. And we think that that act, as an entirety, was still in force at the time of the issue of the patent, and was the act under which it was issued. The act was continued in force in the revision of 1868. (Gen. Stat., p. 941.) And the acts of 1870 and 1871, (laws of 1870,
Upon the whole case then, as it stands before us, we see-no error, and the judgment will be affirmed.
Concurrence Opinion
I concur in the result reached by my brother Brewer, and in the judgment to be rendered; but am not prepared to say that I concur in all reasons given by him for such result.
Dissenting Opinion
I dissent from so much of the foregoing opinion as decides that adverse and paramount title may be-litigated in an action to foreclose a mortgage. The decision is against authority, and will be a surprise to the profession. All the title a mortgagee can obtain by a foreclosure, is the title of the mortgagor, and it is scarcely fair to compel him, for the benefit of others, to be at the expense of litigating and settling prior and paramount titles to property on which he has loaned a few dollars. I fear that complications may result from the effect of the decision which will be greatly unfortunate to suitors. In support of my view, I refer to-the authorities cited in the opinion, and the cases in 2 Jones on Mortgages, sec. 1440.