No. 218 | Kan. Ct. App. | Jul 16, 1897
The contention of the plaintiff in error is, that Martin McOleery, mortgagor, the Kansas Central Loan and Investment Company, mortgagee, and through them the plaintiff, are innocent purchasers for value under the decree of foreclosure against Dolloff, and that Dolloff, and Gale and the defendant in error, claiming under Dolloff, are es-topped by that decree of foreclosure from asserting any right to the premises.
The defendant in error contends that McOleery and wife, the mortgagors, and the plaintiff claiming under the Kansas Central Loan and Investment Company, mortgagee, are estopped from asserting title, by reason of the judgment in the action brought by Gale to recover the property in controversy. Gale’s petition in .this action to recover the land set out all the conveyances, from the grant by the Government to the State of Kansas to aid certain public improvements, down to himself, setting out the deeds and claiming title in fee. He recovered judgment upon this petition, and there can be no question, under the decisions of the courts and the authority of the text-writers, that this decree works an estoppel against both Mc-Cleery and the plaintiff. And even if this were not so, the decree of foreclosure in the case against Dolloff and others could not be more comprehensive than the petition, and could not and did not determine any rights of Dolloff that were prior and superior to the mortgage given by Jackson. It is admitted by the parties that but for this decree of foreclosure and sale, Dolloff would have the paramount title, which he ac
The question is argued as to the right of a mortgagee, or holder of a mortgage, to make parties defendant persons claiming adverse titles, for the purpose of determining the adverse title in the foreclosure proceeding. We have said, in the case of Busenbark v. Park (ante, p. 1), upon the authority of Bradley v. Parkhurst ( 20 Kan. 462" court="Kan." date_filed="1878-07-15" href="https://app.midpage.ai/document/bradley-v-parkhurst-7884632?utm_source=webapp" opinion_id="7884632">20 Kan. 462 ), that the holder of an adverse title could be made a party defendant, and that in an action to foreclose a mortgage a paramount title could be litigated and determined. We believe that under a liberal interpretation of our Code — for which that Code provides — this can be done. We believe it was the intention of the Legislature to have all controversies respecting a piece of property settled in one suit; that was one of the reforms contemplated by the framers of the Code. However, this question is immaterial to the decision of this case, as it is conceded by the parties that unless Dolloff was barred of his prior and paramount right by the decree of foreclosure, the judgment is correct; or that, if the judgment in ejectment in the case of Gale against McCleery and others barred the mortgagors and mortgagee, who were parties and personally served in that case, the judgment of the District Court is correct. We hold that Gale’s judgment in ejectment was a bar, and that the judgment of foreclosure against Dolloff only barred him of any rights that may have accrued to him after the making of the Jackson mortgage, and not any prior and superior title thereto.
The judgment is affirmed.