3 Kan. App. 316 | Kan. Ct. App. | 1896
The opinion of the court was delivered by
This was an action brought by the defendants in error to reform a deed and trust deed and foreclose • said .trust deed. The deed in question was given by Isaac McOune and wife to Isaac McKibben, and the trust deed was given by McKibben and wife to the defendants in error. In the district court, McKibben and wife, McCune and wife, George M. Noble, and Timothy B. Sweet, trustee, were made defendants, as well as the plaintiff in error, and a judgment was rendered infavor of defendants in error reforming said deed ’ and trust deed, and foreclosing the trust deed as against all parties, and also a personal judgment against Me
A question of jurisdiction is first presented to us, arising out of the fact that the only parties who are made defendants in this court are E. D. Haines and Joseph T. Murtaugh, partners, doing business as E. D. Haines & Co. It is contended by the defendants in error that McKibben and wife, McOune and wife, George M. Noble, and Timothy B. Sweet, trustee, are necessary parties to determine this action. So far as the original defendants, Sweet, trustee, and Noble are concerned we do not consider the position as well taken, for, in our opinion, neither was a necessary party to the original action in the district court; but we do believe that McOune and wife and McKibben and wife should have been brought into this court for a final determination of their rights. The deed which defendants in error sought to have reformed was given by McOune and wife, while the trust deed was given by McKibben and wife. In a proceeding to correct a misdescription of the premises running through several conveyances, the grantors in each and every conveyance containing such alleged misdescription should be made parties to the action. It was therefore necessary to make McOune and wife, who made the deed to McKibben in which the first alleged misdescription occurred, parties in the district court.
It is contended by plaintiff in error that, as the record discloses that McOune and wife had conveyed to the plaintiff in error by a quitclaim deed all interest in the premises sought to be reached by a correction of the deed and trust deed, they were not necessary parties, either in the lower court or in this court. But the judgment rendered by the district court passes
It follows from what has been said in this case that all of the parties affected by this judgment have not 'been made parties in this court, and, such being the case, this court cannot entertain this action, and it must be dismissed. (Bain v. Conn. M. Life Ins. Co. [post], 40 Pac. Rep. 817 ; Matthewson v. Senior, ante, p. 117, 42 Pac. Rep. 827 ; Norton v. Wood, 55 Kan. 559.)
• We have, however, carefully examined the record in this case, and are of the opinion that, if the cause was properly before us, the judgment would have to be affirmed, but, for the reasons above stated, the action is dismissed.