Bear v. Cutler

• Decision Date: 09 December 1911
• Docket Number: 17,276
• Citation: 119 P. 713,86 Kan. 66
• Parties: W. S. BEAR, Appellee, v. FRANX M. CUTLER et al. (J. T. KENYON, Appellant)
• Court: Kansas Supreme Court

119 P. 713

86 Kan. 66

W. S. BEAR, Appellee, v. FRANX M. CUTLER et al. (J. T. KENYON, Appellant)

No. 17,276

Supreme Court of Kansas

December 9, 1911

Decided July, 1911.

Appeal from Scott district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1.EJECTMENT--Purchaser at Foreclosure Sale--Title.In 1887 the owner of a vacant and unoccupied quarter section of land mortgaged it and shortly thereafter conveyed to a grantor of the defendant.In 1891 the land was sold under foreclosure to a grantor of the plaintiff, neither the mortgagor nor the owner being a party to the foreclosure.The plaintiff and his grantors purchased in good faith for a valuable consideration, and paid all the taxes after the foreclosure.The plaintiff had a portion of the land broken and a crop was put in, a portion of which he was to receive but the crop failed.He permitted another portion of the land to be fenced and used for a pasture, and while the owner of the fence was still using the pasture with consent of the plaintiffthe defendant went upon the land, plowed and planted the broken portion and ran a few furrows around the quarter section, the object being to gain possession.No payment or offer to pay any part of the mortgage debt was made.Held, that the plaintiff could maintain ejectment.

2.EJECTMENT Reply--New Issues--Not Prejudicial.In an action in ejectment the plaintiff, over objection, was permitted to file a reply setting up a cause of action to quiet title.Held, that such amendment was improperly permitted and substantially changed the claim of plaintiff, but as the matters in controversy were fully litigated and the judgment rendered ignored such amended reply the defendant was not substantially prejudiced thereby.

R. D. Armstrong, for the appellant.

J. D. Frazier, for the appellee.

OPINION

WEST, J.:

In 1887 the owner of the quarter section of land in controversy, which was then vacant and unoccupied, mortgaged it for $ 350, and twenty-six days thereafter conveyed to the grantor of the defendants.In 1891 the land was sold under foreclosure to one Lincoln, who shortly thereafter conveyed to McReynolds, who in December, 1905, conveyed to the plaintiff.No part of the mortgage has ever been paid by the mortgagor or fee owner of the land, and all taxes since the foreclosure sale have been paid by the plaintiff or his grantors.In 1906the plaintiff had 40 acres of the land broken, and an adjoining owner put in a crop on an agreement that plaintiff was to have one-third thereof, but nothing was raised.About 60 acres of the land was fenced for pasture by the adjoining owner, who sold his farm in 1908 and turned over to his grantee the fence surrounding this pasture, but the same was allowed to remain on plaintiff's land, the grantee being authorized by the plaintiff to use the land, who pastured the portion enclosed through the season of 1909.In the spring of 1909the defendants went upon the land, and having failed in an attempt to lease the same to the owner of the fence, requested him to remove the fence, and proceeded to cultivate and use the land theretofore broken, also plowing a furrow or two around the quarter, the object of the entire proceeding being to gain possession.At that time a portion of the fence had been taken down and it appears that its owner was intending to enlarge the pasture.In August, 1909, the plaintiff brought an action to recover possession of the land, filing the ordinary statutory form of petition.The answer was a general denial and admission of possession under claim of ownership.The reply was an assertion that the defendants' possession was unlawfully taken and wrongfully held.The plaintiff afterwards filed an amended petition setting up in detail the facts claimed to entitle him to relief, to which the original answer was refiled.

At the trial the plaintiff, over objection, was permitted to file an amended reply setting out in detail the claims of the plaintiff and the supposed claims of the defendants and praying for a decree quieting title.At the conclusion of the trial by the court judgment was rendered for the plaintiff for possession of the land and for costs, but no decree was entered quieting title.

The defendant appeals and assigns as error the permission to file the amended reply and rendering judgment for the plaintiff instead of the defendants.We have examined the evidence and find that the trial court was warranted in holding for the plaintiff on the question of possession.While no mention was made in the pleadings or upon the trial of the proposition that the plaintiff occupied the position of a mortgagee in possession, the point is suggested in the brief, and it appears that although the mortgagor or fee owner of the land was not made a party to the foreclosure suit, still the purchaser at the sheriff's sale and his grantees bought in good faith and paid a valuable consideration and paid the taxes, and no part of the mortgage has been paid or offered to be paid by the fee owner.For about three years the plaintiff was in possession of the land by tenant and improved a portion thereof, and was claiming and exercising ownership when the defendants went upon the land.While it might have been proper for the plaintiff to have brought suit to compel the defendants to redeem, still having sued in ejectment and the defendants having asserted possession and ownership without any offer to pay or redeem, the matter resolved itself into one as to which party had the better title, and the finding of the court in favor of the plaintiff had sufficient support in the evidence to sustain it.

The amended reply changed the nature of the action from ejectment to quiet title and should not have been permitted to be filed, but as the judgment appears to have been rendered on the amended petition and not on the amended reply, and the controversy was fully litigated, the judgment should not be reversed unless substantial prejudice resulted.

Section 140 of the civil code permits the amendment of pleadings in furtherance of justice "when such amendment does not change substantially the claim or defense."The amended petition alleged with some detail the nature of the plaintiff's title and right of possession and specifically charged...