Bodwell v. Heaton
| Citation | 18 P. 901,40 Kan. 36 |
| Court | Kansas Supreme Court |
| Decision Date | 07 July 1888 |
| Parties | JOHN B. BODWELL v. M. HEATON & CO |
Error from Norton District Court.
ACTION by Heaton and three others, partners as M. Heaton & Co. against F. M. Jolly, to recover upon two promissory notes and an account. On behalf of plaintiffs, an order of attachment was issued and levied upon certain land. J. B. Bodwell filed an interplea in the action, alleging that he had a certain interest in the land attached. Judgment for the plaintiffs on April 15, 1886. The interpleader Bodwell brings the case here. The opinion contains a sufficient statement of the facts.
Judgment reversed.
C. D Jones, for plaintiff in error.
L. H. Thompson, and Rossington, Smith & Dallas, for defendants in error.
OPINION
The defendants in error, as plaintiffs, brought their action upon two promissory notes and an open account, in the Norton district court against F. M. Jolly as defendant, filed an affidavit and bond, and caused an order of attachment to issue, and real estate of the defendant to be attached. Service was made by publication, and the defendant is in default. J. B. Bodwell, plaintiff in error, filed an interplea, alleging that the defendant Jolly had agreed with, and intended to have executed to him a mortgage upon the land attached, to secure a note of $ 2,000, but in executing said mortgage there had been a mistake in the description of the land. He avers that the correct description of the land sought to be mortgaged was the northwest quarter of the southeast quarter of the southeast quarter, and an undivided one-half of the northeast quarter of the southeast quarter of the southeast quarter, section eight, township two, range twenty-one, Norton county, Kansas, containing fifteen acres. In the mortgage it was described as the northwest quarter of the southwest quarter, section eight, township two south, of range twenty-one west, containing fifteen acres. He avers that this error in the description thereof was by the mutual mistake of himself and defendant.
This interplea was filed under the provisions of § 45a, chapter 80, Compiled Laws of 1879, which is as follows:
"Any person claiming property, money, effects or credits attached, may interplead in the cause, verifying the same by affidavit, made by himself, agent, or attorney, and issues may be made upon such interpleader, and shall be tried as like issues between plaintiff and defendant, and without any unnecessary delay."
The defendants in error say that the question of the reformation of the mortgage is not properly before the court, because the interplea was not verified by affidavit; this question was not raised at the trial in the district court. On the contrary, it was apparently waived, as the plaintiffs made a motion to make the interplea more definite and certain, and afterward answered to its merits without further objection; therefore we shall not consider it here. The defendants say further, that this section was not intended to include actions of this nature; that the mortgagee of real property is not the owner of the land mortgaged and has no title to it, and therefore cannot interplead when the land is attached. The language of the statute is very broad and comprehensive. It provides that "any person claiming property, money, effects or credits" may interplead. The term "property" as defined by subdivision 10, § 1, chapter 104, Compiled Laws of 1879, includes both personal and real property, and real property includes lands, tenements, hereditaments, or rights thereto or interest therein, equitable as well as legal. A mortgage upon such property is a lien upon it, and although the mortgagee has no rights of possession or title to the land, he certainly has an interest in it, and under the statutory definition a mortgagee has property in the land mortgaged, so that he may interplead in any cause in which it is sought to be taken. In Missouri it is held that the title to real estate cannot be litigated nor any interest therein appropriated in a proceeding like this, although the statute of that state is similar to the one we are now reviewing; but the principal reason given for that decision was that the word "property" used in the statute had reference to personal property only, and could not be construed to include real-estate property. In support of this decision the court cites the provisions of its statute concerning orders of attachment and executions issued by a justice of the peace, which were exactly like the...
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