Culp v. Culp

• Decision Date: 06 May 1893
• Citation: 32 P. 1118,51 Kan. 341
• Parties: DANIEL KULP et al. v. MYRON KULP et al
• Court: Kansas Supreme Court

32 P. 1118

51 Kan. 341

DANIEL KULP et al. v. MYRON KULP et al

Supreme Court of Kansas

May 6, 1893

Error from Bourbon District Court.

ACTION by Daniel Kulp and others against Myron Kulp and others to foreclose a mortgage. Defendants had judgment, on demurrer to the petition, and plaintiffs bring the case to this court. All the material facts are stated in the opinion.

Judgment affirmed.

B Hudson, and Cory & Hulbert, for plaintiffs in error; E F. Ware, of

1. A demurrer admits all the proper averments of the pleading attacked.

2. Absence of a debtor from the state stops the running of the statute of limitations. Civil Code, § 213; Morrell v Ingle, 23 Kan. 32; Nelson v. Herkel, 30 id. 457; Case v. Frazier, 31 id. 689.

3. This is a proceeding in rem. We reach the land direct, and not by administration. Our interest is not barred. Crooker v. Pearson, 41 Kan. 410; Hanson v. Towle, 19 id. 273; Toby v. Allen, 3 id. 399; Spurlock v. Sproule, 72 Mo. 503; Allen v. Moer, 16 Iowa 307; Wilts. Mortg. Forecl., P 63, p. 73.

4. We have a right to redeem here through the minor, David E. Kulp. "Any person may redeem who has any right in the land or any title to its possession which can be deemed an estate therein." Dubois v. Hepburn, 10 Pet. 1; Neill v. Rozier, 6 S.W. 167; Dougal v. Montlezan, 3 S. Rep. (La.) 273; Gen. Stat. of 1889, P 7003.

5. The tax titles are junior, inferior and subordinate to the lien of plaintiffs' mortgage and are void upon their faces.

Plaintiffs loaned their money on security of this land. It has not been repaid. The defendant tax-title holders are not in a good position to plead laches as against plaintiffs' rights. They can lose nothing. They get their money back, with 20 to 24 per cent. interest. The plea of lack of diligence can be allowed only where that lack has permitted innocent parties to acquire equities and rights which are liable to be infringed. Plaintiffs have a right to redeem; and they tendered the necessary amount.

E. M. Hulett, for defendants in error Lotterer and Garrison:

The statutes of limitation were a bar in this case. This Kulp note was 17 months overdue when S. H. Kulp left the state and moved to Illinois. His removal from the state suspended the running of the statute, but such suspension is not indefinite. "A creditor cannot prevent the operation of the statute by delay in taking action incumbent upon him." 36 Kan. 628.

Upon the death of S. H. Kulp, in December, 1879, if a creditor wished to establish a claim against his estate in the state of Kansas, the law provides that, on a failure of those entitled to administer to act in the matter, a creditor may administer, and that failure to act in a reasonable length of time will start the statute to running again. 46 Kan. 480; 45 Iowa 120. This action was commenced by filing the plaintiffs' petition, on March 13, 1889, giving from S. H. Kulp's death, in December, 1879, to March 13, 1889, in which the plaintiffs might reasonably have been allowed and required to secure an appointment of an administrator and brought suit. In over 10 years this claim lay dormant and became stale.

While this is not an action to charge the estate of S. H. Kulp generally with the note, it is an action to charge the land embraced in the mortgage given to secure a note of S. H. Kulp, and claiming the land to be still the property of his estate, or of his heirs, by descent. Is there any reason why the rule adopted by this court to protect the general estate of one deceased from stale and dormant claims and demands should not be applied to specific and special claims? The mortgage is secondary and ancillary to the note. When the note is extinguished or barred, so is the mortgage. 22 Kan. 648.

Ed. C. Gates, and J. M. Humphrey, for defendants in error Bishop and Bishop:

This case is not within those excepted in § 141 of the tax law, nor is any claim made that the taxes had been paid, or the land redeemed as provided by law. Said section is not modified or limited by § 21 of the code. Beebe v. Doster, 36 Kan. 678; Edwards v. Sims, 40 id. 235; Doudna v. Harlan, 45 id. 484; Cartwright v. Korman, 45 id. 515; Campbell v. Stagg, 37 id. 420; Long v. Wolf, 25 id. 522; Jordan v. Kyle, 27 id. 190; Thornburgh v. Cole, 27 id. 490; C. K. & N. Rly. Co. v. Cook, 43 id. 88.

A valid tax deed vests in the grantee the absolute title to the property in fee simple. Tax law, § 138; Harris v. Curran, 32 Kan. 580; Board of Regents v. Linscott, 30 id. 240.

Filing a tax deed for record is sufficient to start the statute of limitations to running. Richards v. Tarr, 42 Kan. 547.

Absence from state will not operate to suspend the limitation prescribed in § 141 of the tax law. Beebe v. Doster, 36 Kan. 666; Edwards v. Sims, 40 id. 235; Cartwright v. Korman, 45 id. 517.

A tax deed recorded more than five years, with party in possession, should be liberally construed for the purpose of upholding and enforcing it. Rice v. Sanger, 43 Kan. 580; Neenan v. Black, 50 id. 639. See, also, Doudna v. Harlan, 45 Kan. 491.

It was decided in Railroad Co. v. Burlingame Township, 36 Kan. 628, "that a person cannot prevent the operation of the statute of limitations by delay in taking action incumbent." It was also said in that case, that "to permit a long and indefinite postponement would tend to defeat the purpose of the statutes of limitation, which are statutes of repose, founded on sound policy, and which should be so construed as to advance the policy they were designed to promote." Bauserman v. Charlott, 46 Kan. 484, 485.

Plaintiff cannot defer running of statute by his own laches. 13 Am. &. Eng. Encyc. of Law, p. 726; Palmer v. Palmer, 36 Mich. 487, 494; Hintrager v. Traut, 69 Iowa 746; Baker v. Johnson Co., 33 id. 151; Kirby v. Lake Shore &c. Rld. Co., 120 U.S. 130, 140.

Following these decisions, the claim of plaintiffs in error is barred by the statute. They have slept so long upon their rights that they cannot now recover.

B. Hudson, and Cory & Hulbert, for plaintiffs in error, in reply; E. F. Ware, of Counsel.

Suppose that S. H. Kulp had not died: even the note would not then be barred. What principle, then, intervenes to take the case out of the general rule? Will it be claimed that the heir can stand in a stronger position than the ancestor? If it is, upon what principle of law or justice is the claim founded? The courts hold that only in those cases where the law of administration is invoked will the statutes of limitations there applicable be applied. Lay v. Mechanics Bank, 61 Mo. 72.

The distinction between claims for money and proceedings in rem, upon which we rely, is well sustained by authorities. In Iowa, the law is identical with ours in declaring a mortgage only an incident to the note, and in holding generally, that when the note is barred the mortgage is also barred. Yet in Allen v. Moer, 16 Iowa 307, the court said that the fact that a claim against an estate was barred did not bar the foreclosure of a mortgage given to secure it. See, also, 4 Iowa 151; 22 id. 299, and cases cited; 12 Tex. 27; 1 id. 639; 42 Cal. 493; 52 id. 568; 47 Am. Dec. 697; 19 Vt. 463; 42 Am. Dec. 478; 17 Vt. 54; Andrews v. Morse, lately decided in this court. See, also, Johnson v. Cain, 15 Kan. 537.

There is a marked distinction between this case and Bauserman v. Charlott, 46 Kan. 480, upon which the defendants seem to rely.

The defendants are not in a position to plead laches, or to invoke any special equities in their favor. If they lose this case, they are ahead. If they win it, plaintiffs suffer a great wrong.

JOHNSTON, J. All the Justices concurring.

OPINION

JOHNSTON, J.:

On March 13, 1889, the plaintiffs brought an action against the defendants in the district court of Bourbon county, to foreclose a mortgage executed by S. H. Kulp and wife upon 320 acres of land situate in Bourbon county. In the petition, it is alleged that the mortgage was given to secure a promissory note executed by S. H. Kulp in favor of Daniel Kulp and Samuel Stauffer, on April 1, 1872, by which he promised to pay, one year after date, the sum of $ 3,000, with interest at 6 1/2 per cent. It is alleged that no part of the principal and interest has been paid, and that there is due the sum of $ 6,305. It is further alleged, that S. H. Kulp, the maker of the note, removed from Kansas in September, 1874, and was personally absent from the state ever afterward, living in the state of Illinois until the year 1877, when he removed to Iowa, where he died in September, 1879, leaving as his only heirs his widow and seven children, among whom were two of the defendants, Myron Kulp, a son 22 years of age when this action was begun, and David E. Kulp, who was then a minor under 21 years of age. All the children were under the age of 21 years at the decease of S. H. Kulp, and no administration was ever had upon his estate in Kansas. The widow, Rebecca Kulp, and the children other than Myron and David. E., have by quitclaim deeds conveyed their interests and title in one of the quarter sections of the land to the defendant S. A. Lotterer, and in like manner they conveyed the other quarter section to the defendant Benjamin Garrison. There is a further averment that, in obtaining quitclaim deeds from the heirs, Garrison acted and is still acting and holding the same as the trustee of the defendant John Bishop. It is alleged that the mortgage was duly executed and recorded; that the plaintiffs were still the owners and holders of the note secured by the mortgage; that default had been made in its payment; and that, while defendants and each of them claim an interest or equity in the land, it was junior and subordinate to the mortgage sought to be foreclosed. As an additional allegation, it is alleged...