Jones v. Standiferd, 77 P. 271

Jones v. Standiferd

77 P. 271 | Kan. | 1904

The opinion of the court was delivered by

.Smith, J. :

Plaintiff in error must fail in her at-tempt to get title and possession to the property involved for three reasons :

(1) She purchased land from Mary P. Jones which was encumbered by a mortgage for $10,000 to Hiram Holt, executed by her grantor. Its existence was a matter of record. When the Wisconsin Planing Mill Company began suit to foreclose its lien for material furnished to Mary P. Jones, it did not, it is true, seek to fix its claim as a charge on the land now in controversy, but on other lands covered.-by the Holt mortgage. Before Hiram Holt was made a party to the *517action brought by the planing-mill company, Mary P. Jones had executed a deed to the land in question to plaintiff in error, but it was withheld from record until after Hiram Holt had come into the foreclosure suit, set up his mortgage against Mary P. Jones and her codefendant on the same land and obtained judgment thereon and an order of sale of the mortgaged property.

The case must be treated as though the legal title to the land now in question vested in Mary P. Jones at the time the decree foreclosing the Holt mortgage was entered, and regard Jennie Jones as a purchaser pendente lite. (Smith v. Worster, 59 Kan. 640, 54 Pac. 676, 68 Am. St. Rep. 385; Baker v. Land Co., 62 id. 79, 61 Pac. 412; Atchison County v. Lips, ante, p. 252, 76 Pac. 850.)

Mary P. Jones and her codefendant, T. B. Jones, were duly served with summons in the suit brought by the Wisconsin Planing Mill Company to foreclose its lien. They were bound to take notice of the cross-petition of Hiram Holt, filed thereafter, in which he asked for and obtained a decree for the foreclosure of his mortgage and an order of sale of the property in controversy. In Kimball and others v. Connor, Starks and others, 3 Kan. 414, 431, it was said : “When the original summons is served the defendants are' in court for every purpose connected with the action, and the defendants served are bound to take notice of every step taken therein.” In Curry v. Janicke, 48 Kan. 168, 29 Pac. 319, it was held that when a party has been properly served with summons he must take notice of an answer and cross-petition filed by a defendant who was made a party to the action .after the answer-day named in the summons. Mary P. Jones and T. B. Jones being in court to answer in a suit brought to foreclose a material-man’s lien on land *518which they had mortgaged to Hiram Holt, they ought reasonably to have expected that their mortgagee would come in and assert his rights under his mortgage. They being in court, their failure to plead did not render any action that was taken in the suit less •obligatory upon them.

(2) After the sale in foreclosure of the land claimed by plaintiff in error, her grantor, Mary P. Jones, and T. B. Jones, filed a motion to vacate and set aside that ■sale on eight grounds. The first challenged the court’s jurisdiction over the persons of defendants ; four others attacked the appraisement returned by the sheriff; the fifth alleged that there was a combination botween bidders at the sale which suppressed competition ; another, that sufficient notice was not published ; and another, that no money was paid by the purchaser. This attack on the sale, so far as it was based on non-jurisdiction al grounds, was a general appearance in the case. (Burdette v. Corgan, 26 Kan. 102; Life Association v. Lemke, 40 id. 142, 19 Pac. 337; Investment Co. v. Cornell, 60 id. 282, 56 Pac. 475; Baker v. Land Co., supra.)

(3) The whole of section 22, township 18, range 13, the northwest quarter of which is here involved, was sold under the decree of foreclosure to Hiram Holt for $5500, the sale confirmed, and a sheriff’s deed executed. Holt and his grantees have been in peaceable possession since 1887. This is not a suit to redeem, but an action in ejectment. The following cases are decisive against the right of plaintiff in error to recover the land: Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, 93 Am. St. Rep. 308; Stouffer v. Harlan, 68 id. 135, 74 Pac. 610; Mortgage Co. v. Gray, 68 id. 100, 74 Pac. 614.

The judgment of the court below will be affirmed.

All the Justices concurring.