22 Kan. 585 | Kan. | 1879
Lead Opinion
The opinion of the court was delivered by
This was an action substantially to quiet title to certain real estate situated in Leavenworth county, but also taking to some extent of the nature of a strict foreclosure of a mortgage. The real estate belonged originally to the Educational Association of Leavenworth, Kansas, and was mortgaged by the association to Andrew Stuart on August 24, 1870. This mortgage was duly recorded August 30, 1870. On September 6, 1871, the association gave its promissory note to Lucien Scott, of which note Gillett and Smith were indorsers. On September 8, 1873, Scott obtained a judgment on this note in the district court of Leavenworth county against said educational association and said Gillett and Smith, which judgment is still in force. This judgment was of course a lien on said real estate, subject however to the prior lien of said mortgage.
“The plaintiff therefore prays that an injunction may be granted to restrain the sale of said property by the sheriff of Leavenworth county aforesaid, which he threatens to do on the 11th day of December, A. D. 1876, by virtue of the execution now in his hands, or at any other time, in said cause; also, that the title of this plaintiff to the real estate aforesaid may be quieted, and may be adjudged, established and declared by this court to be free and clear from any liens by virtue of the judgment above referred to in favor of defendant, said Lucien Scott, or any subsequent proceedings; and that the said defendants may be adjudged and declared to have no interest or lien on said real property belonging to this plaintiff; and that the plaintiff in this cause may have such other or further relief as may be agreeable to equity.”
The court below, after making separate findings of fact, made conclusions of law, as follows:
“1. That there cannot be a strict foreclosure, or a judgment in the nature thereof, in Kansas.
“2. That said Lucien Scott has a lien on the above-mentioned tract of land, to and for the amount of the judgment by him recovered in September, 1873.
“3. That plaintiff is not entitled to maintain any such action as this. >
*593 “4. That defendants are entitled to a judgment that they go hence without day, and have and recover of and from said plaintiff their costs herein expended, and that execution issue therefor.”
Judgment was rendered in accordance with this fourth con■clusion of law.
The plaintiff now brings the case to this court, and asks that said judgment be reversed, on the ground, as we understand, that the court below should, instead of rendering the judgment it did, have rendered a judgment requiring the ■defendants Scott, Gillett and Smith to redeem said property from said mortgage within some specified time, or that they be forever barred and foreclosed from all equities and interest in said land. No such judgment was asked for, however, in the court below. There was not the slightest intimation, ■even, presented to the court, either written or oral, that such a judgment, or indeed any judgment authorizing or permitting a redemption would have been acceptable to the plaintiff. It is true, that during the trial the plaintiff’s attorneys offered orally to the defendants’ attorneys to permit the defendants, or either of them, to redeem the premises, but nothing of this kind was said or intimated to the court. All that the court could properly know — indeed, all that the •court may in fact have known with reference to plaintiff’s ■desires for a judgment — was to be found in the prayer of her petition, and that was against any such judgment as the plaintiff now desires. We do not think that the court below ■erred in refusing to render the judgment which the plaintiff asked for, for we do not think that the plaintiff was, under the circumstances of this case, entitled to any such judgment; and we do not think that the. court below erred in failing to render a judgment which the plaintiff did not ask for. A ■court is not bound to do better for any party than such party .asks the court to do for him or her. We do not think that the plaintiff has lost much, if anything, by the present judgment. Her claim to said property is paramount to that of the defendants, and neither the defendants nor any purchaser
Concurrence Opinion
As this court construes the petition filed in this case, and as prosecuted, was not an action to compel the-defendants to redeem, and decides that neither the defendants nor any purchaser at sheriff’s sale under the Scott judgment can get possession of the property in controversy until they redeem the property by paying to the plaintiff whatever law and equity would require, I concur in the judgment rendered.Instead of bringing her action to quiet title, the plaintiff ought to have filed a petition or bill to compel defendants to-redeem within a reasonable time, and she has that right still,, notwithstanding her previous actions, and the judgments entered.
Concurrence Opinion
I concur .in' affirming the judgment, but not upon the ground stated in the opinion of the court.
