89 Kan. 51 | Kan. | 1913
The opinion of the court was delivered by
This action was brought by the appellants against Edwin R. Crooker, Geo. W. Moore, and L. H. Jackson, as sheriff of Labette county. The first count of the petition alleges, in substance, that the appellants were at the time of the filing of the petition, and during all times therein referred to, the legal owners in fee and in the open, notorious and exclusive pos
The petition, in the first count thereof, further alleges that J. W. Saylor had engaged in the business of selling the burner rights, had made certain sales thereunder and had paid to Crooker all that he was obligated to pay under such verbal contract, and that the mortgage deed was thereby fully satisfied, and that the appellants were entitled to the cancellation thereof or a reconveyance of the property by a quitclaim deed.
Also, it is alleged:
“That the defendant, Thomas H. Murray, instituted an action against Edwin R. Crooker in the District Court of Labette County, Kansas, Sitting at Parsons on or about April 12, 1909, and on or about the 16th day of April of said year caused an order of attachment to issue out of said Court directed to the Sheriff of said County, commanding him to attach and safely*53 keep the lands, tenements, chattels, moneys and effects of Edwin R. Crooker not exempt by law to be applied to the payment of the claim of the said Thomas H. Murray for $3000; that under said order the Sheriff of said' County attached the' land of these plaintiffs hereinbefore described, and the same was appraised at $2,250; that on the 20th day of May, 1911, a judgment was rendered by said Court' against said Edwin R. Crooker and in favor of the said Thomas H. Murray for $3,375, together with costs and declaring the same a lien under the attachment proceedings on the said described real estate, and ordering that said real estate be sold as on execution to satisfy said judgment so rendered against Edwin R. Crooker. That in pursuance of said order L. H. Jackson, as Sheriff, of - La-bette County, Kansas, and successor in office of J. A. Holmes has advertised and is threatening to and will sell said real estate unless restrained and enjoined from so doing by order of this Court.”
The second count in the petition, as to the allegation of the possession of the real estate, is inconsistent with the allegations of the first count.
The third count contains practically nothing that is not contained in the first count.
The court finds that due service was made upon appellee Crooker by publication, and the notice .thereby is approved. Such service is authorized in an action of this nature by section 48 of the code.
There is no finding with reference to Moore, and neither Moore nor Crooker made any appearance in the action.
Murray and Jackson each filed general demurrers to the several counts of the petition. The first count of the petition constitutes the gist of the action, and although the cause of action is not well pleaded, by a liberal construction it states a cause of action against all of the appellees. The demurrers thereto should have been overruled.
If Crooker had a mortgage, only, upon the property, the property was not subject to attachment in an action by Murray against Crooker, and if Murray had no
It appears from the petition that all the rights of, Murray and Jackson depend upon the title in Crooker to the property in question, and by the interplea of appellants in the • action brought by them against Crooker, they had actual notice of appellants’ rights therein. It also appears from the journal entry of the judgment that the motion of the appellants for judgment against Crooker was overruled upon the objection of Murray and Jackson who, so far as appears, in no way represented Crooker, and “for the reason that defendant Murray, an attaching and now judgment creditor of defendant Crooker, claims a lien on said property as such creditor.” This also was error.
In the absence of fraud a debtor of one of the grantees in the deed can obtain no lien upon the premises
The judgment is reversed, and the case is remanded with instructions to proceed with the trial after allowing. any proper amendments to the pleading and summoning the other party to the deed or mortgage, if •desired.