Curtis v. Parker

The opinion of the court was delivered by Horton, C. J.: Upon the facts as found by the trial court, the statement of counsel representing plaintiff in error that Stephenson, the vendor, supposed that at the time of his purchase at sheriff’s sale he was acquiring the estate in the premises of which P. G. Parker, deceased, died seized, and not simply a half-interest therein, is not fully sustained. The action to foreclose the mortgage of March 22,1876, was commenced against Eebecca F. Parker, as widow and heir of P. G. Parker, deceased, and against her as administratrix of said estate. The other heirs were not made parties to the action, nor is it alleged that their existence was unknown, and therefore Stephenson, as the purchaser under the judgment [133] in the foreclosure suit which he instituted, obtained only the title of the defendant in that action. The children of P. G. Parker, deceased) might have been joined with the widow as defendants if he had desired, under the foreclosure and sale, to have divested them of their legal title to the property. (Britton v. Hunt, 9 Kas. 228.) As after the sale, Rebecca F. Parker conveyed to Stephenson other property in full satisfaction of the balance due on the judgment rendered upon the note executed by her and her husband and secured by the mortgage, the mortgage has been fully paid and satisfied, and therefore the premises are no longer burdened with the lien of the mortgage or the judgment. Stephenson obtained all the title and estate at the time he purchased that he had any right to suppose he was buying when the property was struck off to him, and he is in no condition to complain, because he is bound to know the law. The heirs are not required to redeem, because there is no mortgage lien or judgment to be paid or satisfied. Plaintiff in error stands in the shoes of Stephenson, and is not entitled to any higher rights than his grantor. Neither he nor Stephenson can again foreclose the mortgage, because the debt secured thereby has been paid.' The children of P. G. Parker, deceased, have not been guilty of any laches or other acts whereby they should be estopped from the recovery of any property inherited by them from their father, and the ruling of the district court upon the merits of the case must be sustained. Objection is made to the petition. We think such objection, however, unavailing. (Scarborough v. Smith, 18 Kas. 399, 408-9; Tabler v. Wiseman, 2 Ohio St. 208, 211.) The judgment of the district court will be affirmed. All the Justices concurring.