Milton v. Carroll

74 P. 1132 | Kan. | 1903

Per Curiam:

The plaintiff brought this action in ejectment, claiming the right of possession under a tax title. The defendant was in possession,- holding under a deed obtained by foreclosure, of a mortgage. The cause was tried upon an agreed statement of facts, from which it appears that the holder of the tax-sale certificates, through which the plaintiff claimed, was a party defendant and appeared in the foreclosure proceeding. A judgment was rendered, barring him and all persons holding under him of all interest in and to the real estate. In this action the defendant recovered.

There is some contention about the sufficiency of the allegations of the petition in the foreclosure action, as against the then holder of the tax-sale certificates. The allegations of the petition in this respect fall within the case of Case v. Bartholow, 21 Kan. 300, and are sufficient.

The other question is, Can the plaintiff in the foreclosure of a mortgage litigate an outstanding, paramount and adverse title ? This question has been answered in the affirmative by this court. (Bradley v. Parkhurst, 20 Kan. 462, and cases there cited; Loan Co. v. Marks, 59 id. 230, 52 Pac. 449, 68 Am. St. Rep. 349.)

The judgment of the court below is affirmed.