81 Kan. 565 | Kan. | 1910
The opinion of the court was delivered by
This action was brought by V. Jaggar to quiet his title in eighty acres of land in Logan county as against Mary C. and George W. Plunkett, plaintiff claiming under a tax deed and also as mortgagee in possession. In 1888 G. W. Plunkett (who then owned the land in controversy) and his wife mortgaged the same to secure the payment of a note for $300 given to the Farmers’ Loan & Trust Company. The note and mortgage became due in July, 1893- Shortly after executing the same Plunkett conveyed the property to his wife, and it is alleged that they soon afterward left the state. In 1903 a tax deed was issued to plaintiff, under which he took possession of the land. In May, 1905, he acquired the note and mortgage outstanding against .the land, and subsequently he brought suit to quiet his title. Upon the testimony-the trial court found in favor of the plaintiff, holding first that his tax deed was void upon its face, but that he was lawfully in possession of the land and was entitled to the rights of a mort
A contention is made that the testimony was insufficient to sustain the finding that the indebtedness and mortgage were not barred by the statute of limitations. There was testimony tending to show the absence of defendants from the state since the early part- of the year 1889. Some of it was probably subject to objection, but no objection was in fact made, and the rule is that a fact may be established by incompetent evidence, if material, when it is received without objection. (Teegarden v. The Town of Caledonia, 50 Wis. 292; Moore v. McKinley et al., Ex’rs, 60 Iowa, 367; Jaffray & Co. v. Thompson, 65 Iowa, 323; Goodall v. Norton, 88 Minn. 1; Lindquist v. Dickson, 98 Minn. 369.) The trial was before the court, and'the evidence was at least sufficient to support the findings and judgment.
Was plaintiff entitled to the right of a mortgagee in possession ? He first obtained a tax deed, and went into possession of the land under that instrument. It proved to be invalid, and he later acquired the note and mortgage. There was no surrender of the possession taken under the tax deed, nor formal reentry under the mortgage. It is not essential to the status of a mortgagee in possession that possession should have been taken under the mortgage, nor with the consent of the mortgagor. It is enough if the possession be peaceably and legally acquired. (Stouffer v. Harlan, 68 Kan. 135; Mortgage Co. v. Gray, 68 Kan. 100; Henthorn v. Security Co., 70 Kan. 808; Walters v. Chance, 73 Kan. 680.) To be legal the possession must have been taken in good faith, free from deceit, fraud or wrong, and without violation of any contract relation with the mortgagor. If possession is taken under a lease from the mortgagor the mortgagee could not silently con
It is contended that in no event could plaintiff do more than hold the possession of the land until the mortgage debt was paid; that he had no right to take the initiative and bring an action to bar the interest of the mortgagors, and that he could only obtain this result in an ordinary foreclosure proceeding. This was in effect an action to compel redemption and determine the rights of the respective parties, and it has already been held that a mortgagee in possession is not required to hold indefinitely under such an indeterminate and unmarketable right. In Henthorn v. Security Co., 70 Kan. 808, it was said that “it remains, then, only to say that a mortgagee in possession, having the right to retain