Craven v. Bradley

51 Kan. 336 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J.:

John L. Adams was the patentee of the land in controversy, and the plaintiffs below are his sole heirs. Neither he nor his heirs have ever made any conveyance of the land or any part thereof. Adams was a married man, and occupied the land with his family as a homestead from March till November, 1859. September 17,-1859, Adams alone executed a trust deed upon the land, conveying the same in trust to D. R. Anthony, to secure the payment of a note for $140.50 to one Joseph Bates. Mrs. Adams, now Mrs. R. M. Bradley, did not sign the trust deed, and did not know of it till afterward. Adams died August 14, 1864. Suit was commenced to foreclose the trust deed November 29, 1865. Joseph Bates was plaintiff in this action, and the only defendants named were John L. Adams and D. R. Anthony. Summons was issued against John L. Adams and returned “ not found,” and service was attempted to be made upon him by publication. A decree for foreclosure of the trust deed was entered, and the land sold thereunder to D. R. Anthony, under whom the Cravens claim. The sheriff’s deed to D. R. Anthony was dated March 16, 1867. On the 23d day of July, 1889, the heirs of John L. Adams, deceased, brought their action against G. W. and S. M. Craven, the parties in possession and holding Anthony’s title, to recover the possession of the land. Judgment was rendered in favor of them and against the Cravens. Of this judgment they complain.

The statute in force at the time that the trust deed of September 17, 1859, was executed to Adams provided that such a deed “ was not valid without the signature of the wife to the same, unless the mortgage was given to secure the payment of purchase money, or some portion of the same.” Whether the money borrowed on the trust deed was “ purchase money” within the legal definition, we are not called upon to consider, as the mortgage has never been properly or legally foreclosed.

It is claimed that this action, when commenced, was barred by the 15-year statute of limitation. The 15-year statute does not control, because the land was vacant and unoccupied from the time Adams left it in 1859 until about 10 years prior to the commencement of this action. (Taylor v. Miles, 5 Kas. 515; Myers v. Coonradt, 28 id. 211—215.) Further, the 15-year statute of limitations was not pleaded or presented in any way to the trial court.

It is next claimed, that the decree of foreclosure is conclusive and not subject to any attack in the action brought by the heirs of John L. Adams, deceased. It appears, however, that Adams had been dead for more than a year before the foreclosure suit was commenced. Neither his heirs nor personal representatives were made parties. It was decided in Richards v. Thompson, 43 Kas. 209, that

“ Where the holder of a mortgage, long after the death of the mortgagor, proceeds to foreclose his mortgage, making no person a party to the suit except the holder of the mortgage and the mortgagor, and service of summons is obtained by publication, and the foreclosure proceedings are prosecuted to final determination, and a sheriff’s deed is executed and recorded, held, that all the foreclosure proceedings, including the sheriff’s deed, are void as against the heir of the mortgagor and the grantee of such heir, although no action was instituted questioning the validity of such proceedings or deed for more than five years after the sheriff’s deed was executed and recorded.” (Freem. Judg., § 117; Crosley v. Hutton, 98 Mo. 196; 1 Black, Judg., §203; Mastin v. Gray, 19 Kas. 458; Head v. Daniels, 38 id. 1.)

Finally, it is claimed that G. W. and S. M. Craven were entitled to the possession of the land until the plaintiffs below had refunded the purchase money, with interest, under the provisions of § 613 of the civil code. A sufficient answer to this claim is, that these parties never made any request to the court below for any relief under that section. It appears from the record that, after the judgment was rendered, the defendants, in open court, demanded the benefits of the occupying-claimant law for the valuation of improvements and the assessment of damages. The court granted the application. No further request was made about any other relief, and, of course, this court cannot consider a complaint of the kind now urged, before the trial court has had the opportunity to act thereon.

The judgment of the district court will be affirmed.

All the Justices concurring.