Watkins v. Houck

44 Kan. 502 | Kan. | 1890

The opinion of the court was delivered by

Horton, O. J.:

This was an action brought by J. B. Watkins to foreclose a mortgage upon real estate, executed and delivered by Peter P. Houck and wife on the 2d of November, 1874, to M. L. Eoss, to secure the payment of $1,000, and certain interest notes. The real estate described in' the mortgage is as follows: The northeast quarter of section 29, also the northwest quarter of the southwest quarter of section 28, in town 15, range 12, containing two hundred acres, situate in Lyon county, in this state. Before the maturity of the mortgage, or the notes secured thereby, they were assigned to J. B. Watkins, the plaintiff. In the trial court, the defendants Peter P. Houck and Mary Hall did not file any answer or pleading, or otherwise appear. The defendants Joseph Wheat and Laura B. Wheat — being subsequent purchasers — filed an answer alleging:

“1.. A general denial.

“ 2. Plaintiff was not the owner of the note and mortgage.

“3. The proceedings in a suit of M. L. Eoss «.Peter P. Houck et al., were a bar.

“4. The five-year statute of limitations had run.”

The other defendants, Edward F. Murray, Warren and Harrison, and Kellogg & Sedgwick, filed substantially the same answer, with the addition of cross-petitions asking the foreclosure of mortgages executed subsequently to the mortgage of plaintiff. To these answers plaintiff filed replies containing a general denial and matters in avoidance. The trial court decided that the plaintiff had no interest, title or claim in the real estate described in the mortgage, and rendered judgment in favor of the defendants, Murray and Warren and Harrison and Sedgwick, as prayed for by them. The plaintiff excepted, and brings the case here.

It appears from the findings of fact of the trial court, that in 1858 Jacob Hall obtained from the United States a grant of the land in controversy and other lands lying in the counties of Johnson, Osage, Lyon, and Morris. The patent was issued to him for the lands on the 10th day of October, 1862. Prior to the issuance of the patent and on the 8th of October, 1861, Hall conveyed the lands by a deed, absolute upon its face, to William McCoy and David Waldo, This deed was intended as a mortgage to secure a debt due to them from James Hall. It was recorded in Lyon county on the 21st of November, 1861. On July 22, 1861, James C. Munkers brought an action against Jacob Hall in the district court of Lyon county, and attached the land in controversy, but. this attachment was dissolved October 24, 1861. An alias writ of attachment was issued and levied upon the land October 26, 1861 — but this was after the execution of the deed, intended as a mortgage, to McCoy and Waldo. James C. Munkers prosecuted his action commenced on July 22, 1861, to final judgment, and on August 3,1863, the sheriff of Lyon county, after a sale of the land and a confirmation thereof, conveyed the land to Munkers. This deed was recorded in Lyon county on September 14, 1863. On November 22, 1865, James C. Munkers, upon the foregoing sale, obtained another deed to the land, which was recorded in Lyon county on April 13, 1866. On August 27, 1869, McCoy and Waldo began an action in the district court of Johnson county to foreclose their deed or mortgage of October 8, 1861, and James C. Munkers was made a party to that action. He appeared and filed an answer. In the action McCoy and Waldo obtained a decree of foreclosure and an order to sell all the lands described in the deed, including the land in controversy. Munkers was decreed to have the first lien on the land to the amount of $1,800, which was paid by McCoy and Waldo. On February 2, 1871, James C. Munkers conveyed the land in controversy to Peter P. Houck by warranty deed. This deed was recorded in Lyon county May 30, 1871. Subsequently, Peter P. Houck and wife executed the mortgage to M. L. Ross heretofore referred to. On October 12, 1876, Peter P. Houck commenced an action against McCoy and Waldo in Lyon county to quiet his title to the land conveyed to him by Munkers. The defendants, being non-residents, were notified by publication. On March 13,1877, Houck obtained a decree on default. On April 25, 1877, Houck conveyed the land to William McCoy. This deed was recorded in Lyon county on June 2, 1877. After McCoy and Waldo obtained a decree of foreclosure in their action of August 27, 1869, the land in controversy was sold at sheriff’s sale on October 8, 1876, and after a confirmation of the sale William McCoy received a sheriff’s deed to the land on July 25,1877. On April 18,1879, M. L. Ross commenced an action in Lyon county to foreclose the mortgage set forth in the petition in this action. He obtained a decree of foreclosure and an order of sale against Peter P. Houck only. J. B. Watkins, the plaintiff, purchased the land in controversy at a sale made under that decree, and obtained a sheriff’s deed on January 13, 1881. On June 18, 1885, the heirs of Jacob Hall conveyed the same land to William McCoy. This deed was recorded August 7,1885. On March 12,1886, William McCoy conveyed the land to Joseph Wheat. This deed was recorded April 21, 1886. At the March term of the district court of Lyon county for 1881, the judgment obtained by Peter P. Houck on October 12, 1876, in that court against McCoy and Waldo to quiet his title to the land, was, by agreement, set aside and declared void. Neither M. L. Ross nor J. B. Watkins were parties to the vacation of that judgment, nor did either of- them have any notice or knowledge thereof until after it was entered. Neither Ross nor Watkins was a party to the action brought on October 12, 1876, by Houck against McCoy and Waldo. On June 5, 1886, J. B. Watkins, the plaintiff, began this action. The defendant, Peter P. Houck, is a non-resident of the state, and has been absent from the state ever since April 1,1879. After Joseph Wheat obtained a conveyance of the premises, he executed several mortgages thereon. These are the mortgages upon which the district court rendered judgments in favor of some of the defendants.

1. Real-estate “aúSfent fenefitetoparIt fully appears from these findings that James C. Munkers had no title to the premises in dispute on November 2,1874, when he conveyed the land to Peter P. Houck, because his attachment, upon which the property was sold, was not levied until after the deed or mortgage of October 8, 1861, to McCoy and Waldo, and because McCoy and Waldo had satisfied any and all liens he had on the land, amounting to $1,800. The deed or mortgage from Jacob Hall to McCoy and Waldo was on record in Lyon county on November 21, 1861, of which Peter P. Houck had notice. Therefore, on November 2, 1874, when Peter P. Houck and wife executed the mortgage to M. L. Ross, Houck had no title or interest to convey, transfer, or mortgage. The contention of the plaintiff is, that the judgment obtained in the district court of Lyon county by Houck on March 13, 1877, against McCoy and Waldo, quieting his title to the land, inured immediately to the benefit of M. L. Ross, the mortgagee, as the mortgage contained covenants of warranty. Of course, the general rule is, that a subsequent acquired title inures to the benefit of the mortga§ee- (Boone> Mortg., §105; 2 Herman, Estop., §662; Railroad Co. v. Cowdrey, 11 Wall. 459; Lincoln v. Emerson, 108 Mass. 90.) The judgment, however, of Houck v. McCoy and Waldo was a fraudulent judgment, as it could only have been obtained by fraud and peijury. (Laithe v. McDonald, 7 Kas. 254.) Houck had no title or claim of title to quiet. Subsequently, with his assent, this judgment was vacated and set aside. The findings of the court in reference to the vacation of that judgment are as follows:

“ The decree obtained by the said Peter P. Houck and mentioned in conclusion No. 9 hereof, and the decree by confession mentioned in conclusion No. 18 hereof, were both between the same parties and in the same suit — the one vacating the other — and after the entry of the decree vacating the former judgment, the suit in which such former judgment was obtained was dismissed by Peter P. Houck, without prejudice. The said decree of vacation was based upon a confessed finding therein, to the effect that the suit in which the decree sought to be vacated was obtained, was begun by the said Houck with the fraudulent intent on his part to deprive the said Waldo and McCoy of their title, interest and estate in the land which they obtained through the Johnson county suit hereinbefore mentioned, and with a full knowledge of all the facts and for the purpose of defeating and annulling said Johnson county judgment and decree.”

Upon these findings, we do not think it can be held that M. L. Ross, or his assignee, the plaintiff, obtained any benefit whatever on account of the fraudulent decree or judgment. Neither Ross nor Watkins accepted the mortgage upon the faith of that decree or judgment, and as it was fraudulent in its inception, and subsequently set aside by consent of all the parties thereto on account of such fraud, nothing can be claimed for it. No title or benefit can be claimed under it or through it.

2 Title preSightínío timet. The plaintiff contends further, that as Peter P. Houck and wife conveyed the land in controversy to William McCoy by deed on April 25, 1877, and as McCoy accepted the same, that he thereby recognized Houck’s title; that he and all persons claiming under him are estopped from denying such title, and that the defendants acquiring any title to the property through McCoy or Watkins, his grantee, took the same subject to Houck’s title and the mortgage in suit. This argument is fallacious in that Houck had nothing but a fraudulent j udgment upon which to found any deed. This j udgment was set aside and must count for nothing. McCoy had title to the land before he obtained the deed from Houck and wife. The sheriff’s deed to him was dated July;25, 1877, but related back to the sale of October 8,1876, He had the right to buy pretended title of Houck with the view of quieting the enjoyment of his land. Clearly, the deed from Houck to McCoy, if it did not strengthen, did not have the effect to impair or destroy his prior title. By accepting the deed from Houck, McCoy did not forfeit or lose his own title. He obtained the deed simply to purchase his peace.

“It is not the policy of the law to deter persons from buying their peace and compel them to submit to the expense and vexation of law suits, for fear of having their titles tainted by defects which they would gladly remedy by purchase, where it can be done with safety.” (Coakley v. Perry, 3 Ohio St. 344; Donahue v. Klassner, 22 Mich. 252; Gardner v. Greene, 5 R. I. 104.)

The judgment of the district court will be affirmed.

All the Justices concurring.