47 Kan. 173 | Kan. | 1891
The opinion of the court was delivered by
A controversy arose between the parties to this proceeding with reference to the ownership of the southwest quarter of section 10, township 18 south, of range 10 east, situated in Lyon county, Kansas. Each of the parties had obtained a judgment upon constructive service quieting the title to the real estate in himself, but these judgments were vacated by stipulation, and the question as to who was the actual owner of the real estate as between them was submitted to the trial court without pleadings, and upon an agreed statement of facts, under the provisions of § 525 of the civil code. From the stipulated facts it appears that the land in controversy was purchased at the United States land office at Lecompton on October 6, 1859, by one Wesley Wells, by the location of a land warrant upon it, issued under the act of Congress of March 3, 1855. On the day of the location Wesley Wells executed to T. H. Walker a mortgage on the same tract of land, to secure the payment of a promissory note given by him to Walker for the sum of $175.70, being the purchase-money for the land so purchased. The mortgage was recorded on October 7, 1859. On November 25, 1859, Wesley Wells made a written assignment of the certificate of
“Wesley Wells, in parts unknown, will take notice that Thaddeus H. Walker, of the county of Washington, state of New York, did, on or about the 10th of August, 1863, file his petition in the district court of the fifth judicial district of the state of Kansas, within and for the county of Lyon, in said state, against Wesley Wells, setting forth that the said Wesley Wells gave a mortgage to the said Thaddeus H. Walker, on the southwest quarter Q-), of section ten (10), township eighteen (18), range ten (10), situated in said county of Lyon, to secure the payment of one hundred and seventy five dollars and seventy hundredths ($175.70), according to the terms of a certain note referred to in said mortgage, and dated October 6, 1859, payable 12 months after date, with interest from the date until paid at the rate of 4 per cent, per month. The said Wesley Wells is further notified that he is required to appear and demur to or answer said petition on or before the 23d day of October, 1863, or the same will be taken as confessed, and judgment rendered accordingly.”
At the October term, 1863, a judgment was rendered in fa- • vor of T. H. Walker, decreeing a foreclosure and sale of the land described in the mortgage, and upon an order of sale is
The judgment of-the court below will be affirmed.
While I agree with the decision made upon the first point in the case, that the affidavit which formed the basis of jurisdiction was not so defective as to render a judg
It must be remembered that Wells had no personal notice, and therefore a personal judgment could not be given against him for the debt secured by the mortgage; and, as he had parted With all his interest in the land, he was neither a necessary nor a proper party in a foreclosure proceeding where only constructive service was had. He was the only party brought into court, and he had no estate or interest to be affected by the proceedings. The patent to the land was issued directly to Cohn, so that he now holds the complete legal title. The record does not show that the sheriff’s deed to Walker, or the one subsequently made to Kimball, was ever placed on record, and at this time Shippen has a perfect title, so far as the record shows. While there are some equities on the side of the defendant in error, it is difficult to understand how there can be any validity in a judgment given in a case in which there was no defendant who had any interest whatever in the subject-matter of the suit, and, as' was said in Shields v. Miller, 9 Kas. 397, “the judgment cannot be void and the sale made under it legal and valid. If the judgment is illegal and void, the sale must also necessarily be illegal- and void.” If it is granted that by this proceeding against the mortgagor alone, and the sale made thereunder, Kimball acquired the interest and was subrogated to the rights of Walker, the mortgagee, still he would only have a lien against the premises, and could not divest the same of the equity of redemption except by bringing Cohn, or whoever owned the
From these considerations I am led to the opinion that Cohn was not divested of his interest by the foreclosure proceeding, and that Shippen, who holds under him, has the paramount title to the land. As sustaining this view, I cite Britton v. Hunt, 9 Kas. 228; Lenox v. Reed, 12 id. 223; Richards v. Thompson, 43 id. 213; Curtis v. Gooding, 99 Ind. 45; Watson v. Spence, 20 Wend. 260 ; 2 Jones, Mortg., §§1404-6.
The judgment of the district court should be reversed, and the cause remanded with the direction to enter judgment in favor of the plaintiff in error.