44 Kan. 481 | Kan. | 1890
The opinion of the court was delivered by
All the proceedings now presented for review have grown out of an action commenced in the district court of Chase county on June 4,1884, by E. A. Hildebrand, George O. Hildebrand and S. F. Jones, partners as Hildebrand Bros. & Jones, against L. W. Clay and his wife Polly Clay, Adam M. Clay, John Walruff, John Quinn, I. G. Thomas and his wife, Pauline Thomas, George Newman, Henry Harris and his wife, Tabitha Harris, and Theodore Zoellner. In the original action the plaintiffs sought to foreclose three separate mortgages; the defendant, Walruff, sought to have a certain deed reformed and declared to be a mortgage and then foreclosed; and the defendant Quinn sought to have a certain mortgage foreclosed. All the other defendants failed to make any appearance in the action, and were in default. A trial was had as between the plaintiffs and Walruff and
The most of the facts of this case will be found stated in the case of Clay v. Hildebrand, 34 Kas. 696, et seq., and they will not be repeated in this case except in very general terms. This case involves interests in the following town lots, to wit: Lots numbers 11, 13, 15, 17, 18, 19, 20, 22, 24, and 26, in block number 2, in Strong City; but the plaintiff in error, Adam M. Clay, claims an interest only in lots numbers 11,13, and 15; and his interests and equities as compared with the interests and equities of the other parties and other persons, stated very briefly, are substantially as follows:
1. The plaintiffs’ first mortgage, which was from Harris
2. The plaintiffs’ second mortgage, which was from L. W. Clay and wife, purchasers, to Harris, dated July 6, 1880, and assigned to the plaintiffs, includes all the above-mentioned lots.
3. Deed from L. W. Clay and wife to Adam M. Clay, dated November 16,1881, for lots numbers 11 and 13.
4. Deed from L. W. Clay and wife to John Walruff, dated March 21, 1882, for lot number 13; but in equity it was a mortgage from L. W. Clay and wife to John Walruff, dated March 21, 1882, for lot number 15.
5. Mortgage, L. W. Clay and wife to Adam M. Clay, dated April 26, 1882, for lot number 15.
6. Deed from L. W. Clay and wife to John Quinn, dated December 6, 1882, for the west half of lots numbers 18, 20, 22, 24 and 26, and a mortgage from L. W. Clay and wife to Quinn of same date for all the property mentioned in all the deeds and mortgages except that portion deeded to Quinn.
7. The plaintiffs’ third mortgage, from Thomas and wife, purchasers of lots numbers 17 and 19, to L. W. Clay, dated March 27,1883, for saidlots numbers 17 and 19, and assigned to the plaintiffs.
8. June 4,1884, this action was commenced as aforesaid.
9. July 23, 1884, judgment was rendered in favor of the plaintiffs and Walruff and Quinn, on the foregoing mortgages belonging to each respectively; and their priorities were determined as aforesaid.
10. August 2, 1884, Quinn assigned his judgment to the plaintiffs, and they released in the office of the register of deeds, but not in the office of the clerk of the district court, their first two mortgages with regard to the west half of lots numbers 18, 20,22, 24, and 26.
11. August 7, 1884, an order of sale was issued on all the foregoing judgments, and for all the aforesaid property.
12. September 23,1884, the sheriff after advertisement sold
13. About April 23, 1885, or afterward, the aforesaid sale was confirmed, and sheriff’s deeds to the purchasers were ordered and executed.
14. December 8, 1885, Adam M. Clay, as above stated, moved the court to set aside the plaintiffs’ judgment, possibly all the judgments so far as it or they affected any of his rights or interests.
15. December 19, 1885, Adam M. Clay’s motion was sustained, but at the same time the plaintiffs were permitted to amend their petition, and Clay was required to answer to the plaintiffs’ amended petition within thirty days, to which rulings as against him he duly excepted.
16. January 16, 1886, Adam M. Clay filed his answer to the aforesaid amended petition.
17. January 25,1886, the plaintiffs replied.
18. July, 1886, the case was tried upon the aforesaid pleadings as between the plaintiffs and Adam M. Clay, and between them alone, and taken under advisement by the court.
19. July 8, 1887, the court rendered its decision, making special findings and conclusions, and rendering judgment in favor of Adam M. Clay and against L. W. Clay and wife for $964 and .costs, and finding that Adam M. Clay owned lots numbers 11 and 13, and that he held a mortgage on lot number 15, but all subject to other mortgage liens; and denied any other or further relief to Adam M. Clay; and further adjudged that such judgment should not bar Adam M. Clay in any other action from asserting any rights or interests which he might have. In effect it was a dismissal of Adam M. Clay’s proceeding against the plaintiffs for affirmative relief without prejudice; and this is the judgment which Adam M. Clay now seeks to have reversed.
We cannot say that the court below erred. For the pur
The judgment of the court below will be affirmed.