Scattergood v. Martin

57 Kan. 450 | Kan. | 1896

Allen, J.

Two cases are submitted, together. Both were cases to foreclose mortgages executed by Emanuel Johns and wife to the Southern Kansas Mortgage Company. Each mortgage was for $2,500. The one under which Ellis claims covers lot 8, and the one sued on by Scattergood covers lot 9 in block 3 in the city of Lyons. Both plaintiffs claim under assignments executed in blank by the Southern Kansas Mortgage Company. The controversy in this Court is between these plaintiffs in error, who were plaintiffs below, and certain persons who claimed mechanics’ liens on both lots. The petitions allege the execution of negotiable bonds, and mortgages securing the same, by Johns and wife to the Southern Kansas Mortgage Company, and the indorsement and delivery thereof to the plaintiffs ; and that the defendants claim liens on the property which are inferior to those of the plaintiffs. The defendants answered, in substance, that an action had been brought by the Bank of Lyons against the mortgagors and divers other parties claiming an interest in the land under them, the Southern Kansas Mortgage Company, Isaac L. Miller, Colliday and Hartley, and the answering defendants ; that answers were filed in said action in behalf of Miller, claiming to hold one of said mortgages by assignment from the Southern Kansas Mortgage Company, and by Colliday and Hartley claiming under the other ; that in that action a judgment was rendered in favor of these defendants, establishing the validity of their liens, and adjudging them prior to the lien of the mortgages of plaintiffs in these Cases. On the trial, the record mentioned in the answers was introduced in evidence ; and the Court held that the judgment rendered in the action brought by the Bank of Lyons was conclusive on the plaintiffs. The theory of the Court seems to have been that, as no assignment of the mortgages had been recorded, the holder was bound by a judgment in an action to which the original mortgagee was a party. The brief on behalf of the plaintiff in error is devoted to showing the fallacy of this position, and to proving that the owner of the mortgage had the right, at any time before actual sale of the land under the prior judgment, to bring his action against all persons interested and establish the priority of his lien notwithstanding the former judgment. It appeal’s from the record that, in the prior suit, the defendants in error claimed liens on both lots under the mechanic’s lien law; that a building covering both lots. was constructed by the owners of the land, and that their claims for such liens were prosecuted to final judgment in that action.- The record of the judgments, as well as the pleadings on which they were based, was put in evidence in this case, and no attack is made on the validity of the judgments as against the owners of the property. The only question raised was, and is, as to their priority. The mortgages under which the plaintiffs claim are dated June 1, but were not acknowledged till June 14, '1887. There was evidence introduced at the trial showing that work on the building, on account of the construction of which the defendants claim liens, was commenced between the 1st and 20th days of May preceding. Several witnesses testified to this effect, and we are unable to find any evidence in the record contradicting them. This matter is not mentioned in the brief for plaintiff in error, and no one has appeared in this Court for the defendants in error. Conceding that the Court erred in holding the prior judgment conclusive and binding on the plaintiff, it yet appears from all tbe evidence in the case that the defendants had valid liens on the property, which they had duly prosecuted to judgment within the time prescribed by the statute ; and it also appears that their liens were prior and superior to that of the plaintiff under his mortgage. The judgments, therefore, seem to be right although the reason for rendering them may be wrong. As the plaintiffs were given judgments against the mortgagors, and for a foreclosure of their mortgages subject to the prior liens of the defendants, we do not perceive that they have any just ground for complaint.

The judgments in both cases are affirmed.

All the Justices concurring.