62 P. 662 | Kan. | 1900
The opinion of the court was delivered by
This was a foreclosure proceeding, brought by Samuel J. Sharpless against John T. and Florence M. Showalter. Three railroad companies were also made parties defendant. Sharpless asked for judgment on a promissory note for $3000, executed by the Showalters, and to foreclose a mortgage given by them on the west half of block 2 in Myers’s addition to the city of Wellington. In the trial court, there was no contention as to the debt nor as to the lien of the mortgage on the territory particularly described in the mortgage, but it was claimed that the mortgage covered and included a strip of land occupied by the railroad company north of that described in the mortgage, and the trial court so held.
Briefly stated, the facts out of which the contention
While Sharpless, the mortgagee, criticizes the judgment of the district court and asks for relief not given in the decree, he is not in a position to obtain a modification of the judgment. He has not filed a cross-petition in error, and therefore, as to him, the judgment is a finality.
The railroad companies complain of that portion of the decree declaring that the mortgage is a lien on the strip of land north of the mortgaged lots and on which their tracks are located. They alleged that they were ready and -willing to pay the judgment awarded the Showalters against them for the permanent appropriation of the land to whomsoever may be entitled to it, whenever they can do so and be fully discharged and protected; but they were unwilling to pay for the land appropriated a second time.
The first and controlling question in the case is, Did the mortgage cover and include the strip of land which formerly constituted a part of the street and is occupied by the railroad company ? By the vacation of the street, one-half of it reverted to and became the property of the abutting owners. The reversion practically added another lot to the holding of the Showalters. Can it be fairly said that the mortgage which definitely described the eleven lots was intended to encumber the additional strip or lot which the mortgagor had acquired ? The owners were free to mortgage as much or as little of their property as they deemed best; and did they not in specific terms limit the encumbrance to the eleven lots south of the va
We are referred to A. T. & S. F. Rld. Co. v. Patch, 28 Kan. 470, as authority for extending the mortgage over the adjoining strip, but that case applies to a transfer of title, and we need not at this time determine whether the language there employed was fully
We conclude that error was committed in holding that the strip was subject to the lien of the mortgage, and, therefore, that the judgment of the district court must be modified by excluding it from the operation of the decree of foreclosure or from sale for the mortgage debt.