98 Kan. 740 | Kan. | 1916
This was an action to quiet title to the west twenty-three feet of the east one hundred two and one-half feet of lots one and two in block forty-six, old Atchison, Atchison county- (referred to in the pleadings as tract No. 1), and also the west forty-five and one-half feet of lots three and four in block forty-six (referred to in the pleadings as tract No. 2). B. P. Waggener, the defendant, in answer to the third amended petition, disclaimed any right, title or estate in that part of the property referred to as tract No. 1, and the only controversy remaining is over tract No. 2. The trial court sustained the’ defendant’s motion for judgment on the pleadings, and this is the judgment we are asked to review.
There is no dispute over the facts. Martha Mangan, the former owner of the property, was insane and her guardian secured a loan of $1000 from plaintiffs through an order of the probate court and gave a mortgage upon a part of the property to secure payment. The guardian defaulted in the payments on the note and failed to pay the taxes. Subsequently a suit was brought by the guardian to set aside the mortgage. In that suit Perry Hayes and W. C. Hayes came back with a cross-petition and asked to foreclose their mortgage and for •judgment for taxes paid. They prevailed in their cross-petition, and recovered judgment for $2753.11, which was made a first lien on the property which was ordered sold to satisfy the judgment. A tax deed which Perry Hayes had acquired was held void, but he was given a lien for the taxes, interest and costs, all of which merged in the judgment. Subsequently the property was sold under order of sale and purchased by one William Schaap for $7300. The sale was confirmed and certificate issued to Schaap, all the proceedings reciting that the sale was subject to the owner’s right of redemption, which would expire eighteen months after the sale. Subsequently the probate court made an order directing the guardian of Martha Mangan to sell her right or equity of redemption, and her equity was purchased by James S. Gibson for $450. The certificate of sale to Schaap is dated June 16, 1910. The petition alleges that on the 21st day of July, 1910, Schaap sold and conveyed a portion of both of these tracts to Perry Hayes and W.
The petition further alleges that B. P. Waggener was the attorney for the guardian of the insane person, and that he purchased the property at the sheriff’s sale in the name of William Schaap and furnished the $7300 purchase money; and that subsequently he purchased the equity of redemption of his client through James S. Gibson, who acted for him. The petition alleges that because of Mr. Waggener’s relation to Mrs. Mangan, as her attorney, he was disqualified by law from attempting to purchase the property of his client, directly or indirectly, and the plaintiffs contend that whatever title to the property Waggener acquired inured by operation of law to the benefit of plaintiffs because of their deed from the sheriff. Mr. Waggener admits in his answer that he purchased the property; that Schaap and Gibson both acted as his agents: and that he furnished the money for which the property sold and also the $450 paid for the right of redemption of his client. So far as the record discloses, it may be said that his action in this respect appears to have been for the best interest of his client. Some one was obliged to furnish money with which to purchase the property to protect her interests. It appears that no one on behalf of his client has ever obj ected to what he did, and plaintiffs are not in position to take any advantage of the fact that while acting as her attorney he purchased the property.
One of the principal contentions made by plaintiffs is that because the mortgage was foreclosed in an action in which the
In the present suit the plaintiffs appear to rely for a foundation on causes of action which were finally merged and extinguished in the judgment entered in their favor in the foreclosure case. All the claims they had against the real estate by virtue of the mortgage, interest and costs, as well as all claims against the property by reason of their tax deed, were merged in that judgment, and they received and receipted to the clerk for the amount of their judgment and costs out of the $7300 paid into the hands of the clerk by William Schaap, who acted for Mr. Waggener. All their causes of action were merged in the final judgment and thereby extinguished. (Price v. Bank, 62 Kan. 735, 64 Pac. 637, 84 Am. St. Rep. 419.) Of course, William Schaap as purchaser at the sheriff’s sale and as holder of the sheriff’s certificate could make no contract to place the plaintiffs in possession of the premises or give them any rights of possession which would in any manner affect the owner’s right of redemption. Plaintiffs purchased with full notice of the decree to which they were a party; and whatever possession they may have obtained by virtue of the deed did not afford a basis for a subsequent action to quiet title. All the deed from Schaap conveyed was an assignment of his interest as purchaser at the sheriff’s sale, and the deed expressly recited that the property was subject to redemption. Besides, the statute as well as the orders of the court in the proceedings preserved the owner’s right of redemption. The
Under the admitted facts in the case the ruling of the trial court in rendering judgment in favor of the defendants was proper. There was no occasion for a jury as the law entitled defendant to judgment on the admitted facts. Besides, it was purely an equity case triable only by the court.
The judgment is affirmed.