McPherson v. Storch

The opinion of the court was delivered by Johnston, J.: On March 10, 1887, George H. McPherson sold a tract of land adjoining the city of Atchison to P. D. Mills for the consideration of $6,800. Two hundred dollars of the purchase-price was paid on that day, and on March 21, 1887, a further sum of $2,066.66 was paid, at which time McPherson executed a conveyance of the land to Mills, and Mills and wife in turn executed a mortgage thereon to secure the balance of the purchase-price, $4,533.34. On April 19, 1887, Mills, by two separate deeds, conveyed to each of the [319] defendants Storch and Parker an undivided one-third of the McPherson land, and each deed contained this condition: “Subject, however, to a mortgage given by F. D. Mills to Geo. H. McPherson for $4,533.34, one-third of which the grantee assumes and agrees to pay.” Default was made in the payment of the balance of the purchase-price, and McPherson brought an action to recover the same and to foreclose the mortgage given to secure the payment of the balance. It was alleged that while the original transaction was in the name of Mills, it was for the benefit of Storch and Parker, who were jointly interested, and each had an undivided one-third interest in the purchase, and all were liable for the purchase-price of the land. The plaintiff also counted upon the provision in the warranty deeds executed by Mills to Storch and Parker, in which the grantees each assume to pay one-third of the amount secured by the mortgage. At the trial, the court found that the original transaction was between McPherson and F. D. Mills, and that neither Storch nor Parker participated therein. It was also found that no portion of the debt had been paid by any of the defendants, but that Storch and Parker had each tendered one-third of the unpaid purchase-price of the land, with interest thereon, upon condition that the plaintiff execute to each a deed of release to an undivided one-third interest in the lands. The court made the following finding, viz.: “That plaintiff is entitled to judgment against defendant F. D. Mills on note sued on for the sum $5,357.39, with 8 per cent, interest until paid; and is further entitled to judgment against defendants Storch and Parker respectively for the sum of $1,682.35 each, and which said sum may be paid by said defendants respectively within such time as the court may fix therefor, and upon any such payment being made by said Storch and Parker, as so ordered, same shall operate as a release of plaintiff’s mortgage sued on, to the extent of the one-third interest in such land, in favor of either said defendant making such payment, and any such amount so paid thereon shall be credited on such judgment against defendant Mills; and as to either defendant failing to make such payment [320] within such time limited therefor, the plaintiff shall be entitled to special execution for the sale of such interests in said land as shall not thereby be released, and thereon the proceeds, less costs and accrued interest, to be credited upon such judgment against said Mills, and with execution over against either such defendant failing to make his proportionate payment as shall not be satisfied out of the proceeds of such sale; and if both defendants Storeh and Parker shall make such payments, then that special execution shall only issue for the sale of the undivided one-third part thereof as interest of said F. D. Mills in said land, and with execution over against said F. D. Mills for any portion of such proportion of such judgment as shall not have been satisfied from the proceeds of such sale; and the costs of this action to be paid as follows: One-third Qj) the costs hereof to be paid by each F. D. Mills, George Storeh and J. W. Parker, defendants.” The decree of foreclosure was entered in accordance with these findings, and the time fixed for the payment of the proportionate shares of Storeh and Parker was July 3 and September 1, 1889. The plaintiff excepted to this judgment and brought a proceeding in error, in which all the defendants were made parties. He contends that he was entitled to have a foreclosure and sale of all the mortgaged property and a personal judgment over against Storeh and Parker each for the one-third amount of the mortgage which might remain unpaid after the sale of the property described in the mortgage. He also insists that the tender was insufficient in form and amount. On the 3d day of May, 1892, the plaintiff appeared in court and waived any and all claim to review or reverse the judgment of the district court as against James W. Parker, and elected to accept the judgment as against Parker, and dismissed the petition in error as against him. The judgment sought to be reviewed and reversed is joint, and its provisions and conditions are so interdependent that it cannot be reversed or disturbed without affecting all of the defendants in the court below. Each of the defendants is so connected in the decree, and all would be so affected by its reversal, that all are necessary to a review. The proportionate liabilities of the others will necessarily be affected by the [321] absence of the dismissed defendant, and in justice to the others all defendants should remain in the case if there is to be a reversal. The plaintiff undertook to make a qualified dismissal — that is, to dismiss Parker, so that the judgment rendered against him should not be disturbed, and yet retain him for the purpose of having all necessary parties in the court so as to secure a review and reversal of the judgment as against the other defendants. This cannot be done. Parker is either in the case or out of it. He cannot be a party and a stranger in the same case. The plaintiff still insisted at the argument that he had accepted the judgment against Parker, and that it must stand as to him. This action amounts to an absolute dismissal; and, in view of the nature of the action and the terms of the judgment, it operates as a dismissal as to all of the defendants. (Ex parte Polster, 10 Kas. 204; Armstrong v. Durland, 11 id. 15; Hodgson v. Billson, 11 id. 357; Bassett v. Woodward, 13 id. 341; Richardson v. McKim, 20 id. 346; Browne’s Appeal, 30 id. 331; Paper Co. v. Hentig, 31 id. 322.) The petition in error will therefore be dismissed. All the Justices concurring.