Myers v. Jones

The opinion of the court was delivered by ' Smith, J. : The half-section of land included in the mortgage for $2200 given by G. P. Jones and wife to Willis G. Myers, on January 20, 1887, was sold under a judgment recovered in May, 1888, by Brigham & Co. against Jones. The appraisers selected by the sheriff valued the land at nothing above the encumbrances. The return of the officer shows that he advertised the real estate and sold the half section in controversy to J. W. Brigham for five dollars, subject to a mortgage lien of $2200. The defendant in error Hutchison derived title to said land by quitclaim from Brigham. On June 6, 1889, suit was brought in the district court to foreclose the mortgage given by Jones and wife to Myers; and Hutchison, Jones and wife, Brigham & Co., Tennant, Walker & Co., .Argersinger & Co. and other judgment creditors were made parties defendant in the suit. Hutchison alone answered. On January 18, 1890, on motion of Myers, a decree was rendered in his favor on the pleadings in the cause foreclosing his mortgage. From this judgment Hutchison prosecuted proceedings in error to this court, where the judgment of the court below was reversed. (52 Kan. 290, 34 Pac. 742.) The reversal was had for the reason that the general denial of — 208 — Hutchison put in issue the question of the ownership of the note sued on, and hence judgment should not have been rendered on the pleadings. While the case was pending in this court Myers assigned the judgment and decree, as well as the note and mortgage, to Kimball, Hackett & Thayer, which assignment was acknowledged and recorded in the office of the register of deeds. .After the reversal of the cause and the receipt of the mandate by the district court, an entry was made in the journal of the court below reciting that it had been adjudged here that so much of the judgment of January 18, 1890, as decreed that the mortgage was a lien on the half section of land prior to Hutchison’s claim was reversed and set aside. After this reversal Kimball, Plackett & Thayer were substituted as plaintiffs in lieu of Myers, and they filed an amended and supplemental petition, setting out their title to the note and mortgage and stating that the same had been lost since the former trial of the cause. Hutchison answered first by general denial; second, that he was the owner of the first tract (the half section) described in the mortgage ; third, that Jones was not the owner of the land when he made the mortgage ; fourth, that Willis G-. Myers was not the owner of the note and mortgage when he brought suit, but that it was held by John Jeffries & Son, trustees. To this the plaintiffs below filed a reply, being a general denial. None of the other defendants in the original cause filed answer to the amended and supplemental petition. On these pleadings the cause was again tried, and a judgment rendered in favor of the plaintiffs below, and a decree foreclosing the mortgage entered, with the usual order of sale. After a sale under the decree and a return of the same made by the sheriff, this action — 209 — was brought to enjoin its confirmation. There was also a motion filed by the plaintiff below to confirm, and another motion by defendants to set aside the sale. , , „ 1,2. Sale subject right°oisase~ su rogation. It is insisted by the defendant in error Hutchison that the agreement made by Kimball, Hackett & Thayer with G. P. Jones and wife, where-J 7 by the former agreed to rely upon the 2an¿ described in the petition covered by the mortgage, and not to undertake to collect any judgment or judgments out of any other property of said Jones and wife, released the half-section of land covered by the mortgage and purchased by Brigham and conveyed to Hutchison. We do not concur with the defendant in error in his contention. The land was advertised and sold, according to the return of the sheriff, subject to the Myers mortgage, for the sum of five dollars. The judgment under which the land was sold to Hutchison’s grantor was junior to the mortgage. Such purchaser is presumed to take the land subject thereto, and as he purchased and paid for only the value of the equity of redemption, the land is as to him the primary fund for the payment of the mortgage debt, and if' that debt be enforced from other property the mortgagor himself (not Hutchison) would be subrogated to the right of the mortgagee and entitled to be indemnified out of the mortgaged premises. (24 A. & E. Encycl. of L. 261; Funk v. McReynold’s Adm’rs, 38 Ill. 481; McKinstry and another, Adm’rs, v. Curtis, 10 Paige, 503 ; Clift against White, 12 N. Y. 534.) The instrument executed by Kimball, Hackett & Thayer was not intended to be a release of the mortgage lien. Such lien was expressly reserved by the agreement. It did not discharge the land from the — 210 — lien of the mortgage, nor anywise prevent the mortgagee from selling the same to satisfy the lien of-the encumbrances. (Pierce et al. v. Sweet, 33 Pa. St. 151; Irwin v. Shoemaker, 8 Watts & Serg. 75; Whitney and another v. Haverhill Mutual Fire Insurance Company, 9 Allen, 35.) As to the judgments of Tennant, Walker & Co. and Argersinger against Jones, rendered in 1888 and 1889, it is sufficient to say that they were inferior in time and lien to the mortgage of Willis Gr. Myers ; and in the first decree, of January 18, 1890, said judgment creditors were barred and foreclosed from all right, title, interest and equity of redemption in and to the real estate. If it is true, as defendant in error Hutchison contends, that that judgment was reversed in this court only as to him, then it stood as against Tennant, Walker & Co. and Argersinger & Co., and the latter are bound by the adjudication against them. Again, in the decree entered May 22, 1894, in favor of Kimball, Hackett & Thayer, foreclosing this same mortgage, they are barred and foreclosed from all right, title, interest and lien upon the property. In the decree of that date it is found that service was had upon them, and their right to superior liens fully adjudicated and denied. They are not seeking to set aside the latter decree against them by reason of defective service. 4'p¿fchas°er Hutchison, the plaintiff below in the case at bar, claims title from another source, acquired since the original judgment in foreclosure entered in January, 1890. On November 11, 1891, he conveyed the half-section to Mrs. Keys. At that time he was a party to the foreclosure action, and the purchase by her was pendente lite. After the last foreclosure judgment, of May 22, 1894, — 211 — Mrs. Keys sold and conveyed the half section back to Hutchison, and he asserts that this vested in him a new title that had never been foreclosed — this for the reason that the matter was not Us pendens as to Mrs. Keys, because the petition was amended afterward, and such amendment could not act retroactively on the title she acquired before it was made. We can see no merit in this contention. The original petition filed in the case stated a cause of action in favor of Myers, and this court, in Hutchison v. Myers, supra, merely held that judgment could not be entered on the pleadings, because the general denial of Hutchison put in issue the ownership of the note. We do not understand the court in that case to say that the petition then under consideration would have been held bad on demurrer, as the plaintiff in that case expressly alleged that he was the owner and holder of the note sued on. No new controversy arose between the parties after the conveyance of the title to Mrs. Keys. The cause of action was the same afterward as before. Again, it will be noticed that the deed of Mrs. Keys was not on record in 1894, when the case was tried the second time, and the plaintiffs in that foreclosure suit had no notice of the same. Her possession, such as it was, began before she obtained her deed. It is quite clear that she was a purchaser pendente lite. (Bayer v. Cockerill, 3 Kan. 282 ; 13 A. & E. Encycl. of L. 907.) Any judgment against Hutchison in the action would be binding upon Mrs. Keys, for her title was derived by under and through him. m error filed. ' We cannot consider the claim of title asserted by the defendant in error under the tax deeds held by him. The court below refused to sustain his contention upon this branch of the case, and made an express finding against him. Of this finding he does not complain here, having filed — 212 — no cross-petition in error asking for relief against it. 6' attaokby1 injunction. It must be remembered that this is an action to enjoin a sheriff’s sale under a judgment, by a defendant in that judgment who had been litigating with the plaintiff for years. He has sought by an action of injunction to attack collaterally the judgment rendered against him. That Kimball, Hackett & Thayer were not the owners of the note was one of the questions litigated before this injunction suit was commenced. Whether or not they were the owners of the note was one of the questions decided in the original case, and being defeated in that controversy Hutchison cannot now assert that the judgment was fraudulently obtained. When a question of fraud is litigated by parties to a suit, a defeated defendant cannot, by proceedings in injunction, retry questions at issue in the main case, or issues which properly might have been tried under the pleadings. An erroneous judgment can never be attacked collaterally, and is not void. (Burke v. Wheat, 22 Kan. 722; Bank of Santa Fe v. Haskell County Bank, 51 id. 50, 82 Pac. 627; National Bank v. Town Co., 51 id. 215, 32 Pac. 902.) Injunction will not lie to correct errors or irregularities. (10 A. & E. Encycl. of L., 1st ed., 901; Burke v. Wheat, supra; C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96 ; Howard v. Eddy, 56 id. 498, 43 Pac. 1133 ; Holderman v. Jones, 52 id. 743, 746, 34 Pac. 352, and cases cited.) The same questions are involved incase No. 11,339, being a proceeding in error here from a refusal of the court below to confirm the sheriff’s sale. Upon the pleadings and. evidence, the judgment of the court below should have been in favor of the plaintiffs in error, their motion to confirm the sale sustained, and a sheriff’s deed issued. The judgment — 213 — in the injunction proceeding and the ruling of the court setting aside the sale on motion will be reversed, with directions to proceed further in accordance with this opinion.