59 P. 275 | Kan. | 1899
The opinion of the court was delivered by '
The half-section of land included in the mortgage for $2200 given by G. P. Jones and wife to Willis G. Myers, on January 20, 1887, was sold under a judgment recovered in May, 1888, by Brigham & Co. against Jones. The appraisers selected by the sheriff valued the land at nothing above the encumbrances. The return of the officer shows that he advertised the real estate and sold the half section in controversy to J. W. Brigham for five dollars, subject to a mortgage lien of $2200. The defendant in error Hutchison derived title to said land by quitclaim from Brigham.
On June 6, 1889, suit was brought in the district court to foreclose the mortgage given by Jones and wife to Myers; and Hutchison, Jones and wife, Brigham & Co., Tennant, Walker & Co., .Argersinger & Co. and other judgment creditors were made parties defendant in the suit. Hutchison alone answered. On January 18, 1890, on motion of Myers, a decree was rendered in his favor on the pleadings in the cause foreclosing his mortgage. From this judgment Hutchison prosecuted proceedings in error to this court, where the judgment of the court below was reversed. (52 Kan. 290, 34 Pac. 742.) The reversal was had for the reason that the general denial of
After this reversal Kimball, Plackett & Thayer were substituted as plaintiffs in lieu of Myers, and they filed an amended and supplemental petition, setting out their title to the note and mortgage and stating that the same had been lost since the former trial of the cause. Hutchison answered first by general denial; second, that he was the owner of the first tract (the half section) described in the mortgage ; third, that Jones was not the owner of the land when he made the mortgage ; fourth, that Willis G-. Myers was not the owner of the note and mortgage when he brought suit, but that it was held by John Jeffries & Son, trustees. To this the plaintiffs below filed a reply, being a general denial. None of the other defendants in the original cause filed answer to the amended and supplemental petition. On these pleadings the cause was again tried, and a judgment rendered in favor of the plaintiffs below, and a decree foreclosing the mortgage entered, with the usual order of sale. After a sale under the decree and a return of the same made by the sheriff, this action
The instrument executed by Kimball, Hackett & Thayer was not intended to be a release of the mortgage lien. Such lien was expressly reserved by the agreement. It did not discharge the land from the
As to the judgments of Tennant, Walker & Co. and Argersinger against Jones, rendered in 1888 and 1889, it is sufficient to say that they were inferior in time and lien to the mortgage of Willis Gr. Myers ; and in the first decree, of January 18, 1890, said judgment creditors were barred and foreclosed from all right, title, interest and equity of redemption in and to the real estate. If it is true, as defendant in error Hutchison contends, that that judgment was reversed in this court only as to him, then it stood as against Tennant, Walker & Co. and Argersinger & Co., and the latter are bound by the adjudication against them. Again, in the decree entered May 22, 1894, in favor of Kimball, Hackett & Thayer, foreclosing this same mortgage, they are barred and foreclosed from all right, title, interest and lien upon the property. In the decree of that date it is found that service was had upon them, and their right to superior liens fully adjudicated and denied. They are not seeking to set aside the latter decree against them by reason of defective service.
The same questions are involved incase No. 11,339, being a proceeding in error here from a refusal of the court below to confirm the sheriff’s sale.
Upon the pleadings and. evidence, the judgment of the court below should have been in favor of the plaintiffs in error, their motion to confirm the sale sustained, and a sheriff’s deed issued. The judgment