31 Kan. 402 | Kan. | 1884
The opinion of the court was delivered by
On May 20,1882, defendant in error brought an action in the district court of Wyandotte county, to foreclose a certain mortgage. In his petition he alleged, in addition to the mortgage debt, certain tax liens existing in favor of the county. A demurrer to the petition having been overruled, and no answer being filed, on January 3, 1883, a judgment of foreclosure was entered. In the journal entry, it appears that the court found the amount of taxes due upon the mortgaged premises, and declared the same a first lien; found the amount due to the plaintiff upon his note; then rendered judgment in favor of the plaintiff for the amount due on the note; ordered a sale of the property if the amount due the plaintiff should not be paid within six months, and directed that out of the proceeds the costs be first paid, then the taxes, and then the plaintiff’s judgment. The amount of taxes was largely in excess of the amount due the plaintiff on his mortgage. The sale for the first of such taxes had been made to the county more than three years prior to the date of the judgment, and of course the tax lien was liable to pass into a tax deed at any moment. The judgment failed to order a sale on the non-payment of the taxes, but' directed one only on the,- non-payment of the amount found due the plaintiff. The. former order was spoken of in conversation between the plaintiff’s attorney and the clerk of the court, but forgotten by the latter in making the entry. At the time of obtaining the judgment, plaintiff, by his coun
Of this amendment defendants now complain. The principal ground of complaint is, that the judgment as amended does not purport to be a final determination of the rights of the parties, as under our code a judgment must be, but rather in the nature of an interlocutory order, leaving to the clerk or sheriff the power of determining thereafter for what amount an order of sale shall issue. Technically, we think the defendants’ claim is Correct, and that the judgment is not in form that which it should be. But under the facts as developed it is apparent that-substantial justice has been done, and therefore we ought not on a mere matter of form to disturb the judgment. The plaintiff has compromised and paid all the taxes, and the amount he paid was disclosed on
Hence, in all foreclosure actions tax liens may be determined the same as the claims of any mortgagee. The court in this judgment as originally entered found the amount of taxes due and declared them a first lien. It was proper, then, to enter an order that if the taxes and the mortgage debt were not paid within six months an order of sale should issue; and if thereafter the plaintiff paid those taxes it was the same as though he had purchased a prior mortgage lien included in the foreclosure. Failing to enter such order in the first instance, and under the circumstances of this case, it was simply equitable to correct the judgment entry by inserting it. While the form of the judgment entry as finally made is doubtless open to the criticism of counsel, substantial justice is done by it, and we ought not to interfere.
The judgment will be affirmed.