Clevenger v. Figley

• Decision Date: 12 March 1904
• Docket Number: 13,523
• Citation: 75 P. 1001,68 Kan. 699
• Parties: J. M. CLEVENGER et al. v. SARAH M. FIGLEY, Insane, etc., et al
• Court: Kansas Supreme Court

75 P. 1001

68 Kan. 699

J. M. CLEVENGER et al. v. SARAH M. FIGLEY, Insane, etc., et al

No. 13,523

Supreme Court of Kansas

March 12, 1904

Decided January, 1904.

Error from Brown district court; WILLIAM I. STUART, judge.

STATEMENT.

PRIOR to September 4, 1888, J. J. Figley was the owner of 360 acres of land in Brown county. On that date his wife, Sarah M Figley, was adjudged to be insane, and Samuel Huston was appointed her guardian. On November 3, 1888, after formal proceedings for that purpose, the probate court directed the guardian of the wife to join with the husband in the execution of a mortgage upon the land to secure the payment of the sum of $ 7500, according to the terms of a promissory note due in three years from the date of the order. The executed mortgage was approved by the probate court. The obligation secured by this mortgage was not paid at maturity and after default the holder commenced an action in the district court of the proper county to foreclose it. J. J Figley, Sarah M. Figley, and Samuel Huston, as guardian of Sarah M. Figley, were made parties defendant. The petition exhibited all the allegations common to such cases, and besides these recited the insanity of Sarah M. Figley, the appointment and qualification of Samuel Huston as her guardian, the probate proceedings resulting in the mortgage, and made the following specific charge:

"That said Sarah M. Figley has not now, nor did she ever have, any claim, right or title or interest in the property hereinafter described except as the wife of the said defendant J. J. Figley."

The prayer was for a first lien upon the land, its sale, and a bar against all defendants asserting or claiming, after sale, any right, title or interest of any kind in the land. On March 3, 1902, the court rendered a judgment in favor of the plaintiff, foreclosing the mortgage. The record of the proceedings recites the appearance of Sarah M. Figley and Samuel Huston, guardian of Sarah M. Figley, an insane person, by their attorney, the announcement of their readiness for trial, their waiver of a jury, the hearing of evidence, and the argument of counsel. It likewise discloses a finding of the court that Sarah M. Figley was an insane person, and the wife of J. J. Figley; that Samuel Huston was duly and legally appointed guardian of her person, estate, and property; that he properly qualified as such guardian and has ever since acted in that capacity.

After a finding relating to the execution and delivery of the note sued on, appears the following:

"The court further finds that in order to secure the payment of said note and the interest thereon the defendants J. J. Figley and Sarah M. Figley, by her guardian, Samuel Huston, executed, duly acknowledged and delivered said mortgage as in the petition described on the following tracts of land in Brown county, Kansas, to wit: The east half of section twenty (20), township four (4) south, of range seventeen (17) east, all containing three hundred and sixty (360) acres, and that the said described lands were the property of the defendant J. J. Figley, and the title and ownership thereof were not in said Sarah M. Figley, his wife, and that said plaintiff's mortgage is a first lien thereon.

"That the southeast quarter of said section 20, township 4, range 17, is the homestead of said defendant J. J. Figley and his family."

Other findings staple to all foreclosure judgments appear, and orders for the sale of the mortgaged premises, the application of the proceeds of sale, and the exclusion of the defendants from interest in the land, usual in such cases, are shown. The order of sale, however, is qualified as follows:

"That as the southeast quarter of said section 20, township 4, range 17, is a homestead as herein found, it is ordered that the northeast quarter of the said section 20, township 4, range 17, and the southwest quarter of the northeast quarter of section thirty-one (31), township 4, range 17, be first advertised, appraised and sold, or so much thereof as may be necessary for the payment of plaintiff's claim. But if sufficient is not realized from such sale to satisfy said judgment, then the homestead, being the southeast quarter of section twenty (20), township four (4), range seventeen (17), be appraised and advertised and sold in like manner for the payment of any balance due."

The defendants Sarah M. Figley and Samuel Huston, guardian of Sarah M. Figley, filed no motion for a new trial and have at no time taken any steps for the modification or reversal of this judgment. The land ordered to be sold first proving insufficient for the satisfaction of the lien upon it, the so-called homestead tract was then sold upon an alias order of sale, and after a confirmation of the sale it was conveyed by the sheriff to the purchaser, A. L. Figley. His deed was recorded March 8, 1893. No exceptions were taken to these proceedings and no steps have since been taken looking to their modification or reversal.

Afterward A. L. Figley executed several mortgages upon the land, which were subsequently foreclosed by suits in the United States circuit court for the district of Kansas, and under the decree of that tribunal the homestead tract was again sold, and was conveyed to Peter J. Clevenger, one of the plaintiffs in error in this court. In 1899 J. J. Figley died intestate, leaving as his heirs his widow, Sarah M. Figley, and five adult children. On May 8, 1900, Samuel Huston, as guardian of Sarah M. Figley, insane, brought an action to quiet the title of Sarah M. Figley to the undivided one-half of the homestead tract of land, which, at the time of her husband's death, she occupied with him and which she has continued to occupy to the present time.

In September, 1902, Samuel Huston was discharged as guardian of Sarah M. Figley, and E. H. Keller, who succeeded him, was substituted as plaintiff in the action. Upon a final hearing the court found that the land in controversy was a homestead at the date of the Johnson mortgage in 1888, and that Sarah M. Figley had never consented to the execution of that instrument. Therefore, judgment was rendered declaring that such mortgage, the judgment of the district court of March 3, 1892, foreclosing it, the sale of the land to A. L. Figley and the sheriff's deed to him were all utterly void and of no effect whatever. It was conceded that, by the foreclosure proceeding in the federal court, Peter J. Clevenger had acquired the interest of A. L. Figley in the land as an heir of J. J. Figley, being an undivided one-tenth of the whole, and the title to that much of it was quieted in Peter J. Clevenger. But the title of Sarah M. Figley to the undivided one-half of the land and the title of the children of J. J. Figley, other than A. L. Figley, to the remaining undivided four-tenths of it, were quieted in them to the same extent and effect as if the mortgages above mentioned had never been made and the court proceedings referred to had never occurred.

The legal propriety of that judgment is challenged by this proceeding in error.

Judgment reversed and the cause is remanded.

SYLLABUS

SYLLABUS BY THE COURT.

PRACTICE, DISTRICT COURT -- Foreclosure -- Joint Consent -- Judgment Conclusive. In an action to foreclose a mortgage given by the owner of land jointly with the guardian of his insane wife, the district court has jurisdiction to determine whether or not the premises were a homestead at the time the mortgage was executed, and to decide whether or not the instrument expressed the joint consent of husband and wife; and a judgment involving an erroneous decision of those matters is not open to collateral attack, but is valid and binding upon the parties and their privies until corrected in a direct proceeding for that purpose.

W. P. Todd, and Jackson & Jackson, for plaintiffs in error.

Buckles & Pearl, for defendants in error.

BURCH J. All the Justices concurring

OPINION

BURCH, J.:

In his petition the guardian of Sarah M. Figley presented to the district court a mortgage on the real estate in controversy, executed by him in pursuance of an authority conferred by the probate court having general jurisdiction of the estate of his ward, and prayed that it be declared to be a void thing, creating no rights and no liabilities and binding upon no person and no property whatsoever. This judgment was asked against the privies in estate of the mortgagee. In the case of Johnson v. Figley, the mortgagee presented the identical instrument, together with the probate proceedings upon which it was based, to the same tribunal, and asked to have it declared a valid thing, creating just obligations in his favor, rightfully enforceable against Sarah M. Figley and Samuel Huston, as her guardian, who were parties to the cause, and asked to have it declared a first lien upon the very land involved in the present suit.

In this case the ground of relief is that Sarah M. Figley had a special interest in the land which prevented the mortgage from becoming effectual for any purpose. In the former suit the ground of relief was that Sarah M. Figley had no interest in the land which prevented the mortgage from becoming effectual as security for the mortgage debt. The court, the parties, the land, the mortgage and the issues of law and of fact are identical in both suits. A decision has been rendered in each one. What difference of power in the court to pronounce its judgment is disclosed by the two cases?

By the act of bringing suit, the guardian necessarily affirmed that the district court had jurisdiction to decide upon the validity of the mortgage as a lien upon his ward's land. If it had no such authority, no reason existed for invoking its action. In order to obtain a decision in his...