Culp v. Culp

CourtUnited States State Supreme Court of Kansas
Writing for the CourtJOHNSTON, J.:
Citation32 P. 1118,51 Kan. 341
PartiesDANIEL KULP et al. v. MYRON KULP et al
Decision Date06 May 1893

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....

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26 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...Spence, 5 Idaho, 244, 48 Pac. 282;Harding v. Durand, 138 Ill. 515, 28 N. E. 948; Hubbard v. Missouri Ins. Co., 25 Kan. 172; Culp v. Culp, 51 Kan. 341, 32 Pac. 1118, 21 L. R. A. 550;Huntington v. Bobbitt, 46 Miss. 528;Balch v. Arnold, 9 Wyo. 17, 59 Pac. 434. In some of these states the rule ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Spence, 5 Idaho 244 (48 P. 282); Harding v. Durand, 138 Ill. 515 (28 N.E. 948); Hubbard v. Missouri Ins. Co., 25 Kan. 172; Culp v. Culp, 51 Kan. 341 (32 P. 1118, 21 L. R. A. 550); Huntington v. Bobbitt, 46 Miss. 528; Balch v. Arnold, 9 Wyo. 17 (59 P. 434). In some of these states the rule d......
  • Rex v. Warner, No. 41103
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 1958
    ...such mortgage is only an incident of the debt, and if the latter is barred from enforcement so also is the mortgage (Kulp v. Kulp, 51 Kan. 341, 32 P. 1118, 21 L.R.A. 550; King v. Rodgers, 108 Kan. 311, 195 P. 598; Jones v. Hammond, 118 Kan. 479, 235 P. 857; Troxell v. Cleveland Oil Co., 145......
  • Moore v. Rotenberry, 34202
    • United States
    • United States State Supreme Court of Mississippi
    • June 10, 1940
    ...they have an interest at the time they are sold for taxes, and not that in which they may subsequently acquire an interest." Kulp v. Kulp, 51 Kan. 341, 32 P. 1118, 1120, 21 L. R. A. 550; Pearsons v. American Inv. Co., 83 Iowa 358, 49 N.W. 853; Stevens v. Cassady, 59 Iowa 113, 12 N.W. 803; D......
  • Request a trial to view additional results
26 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...Spence, 5 Idaho, 244, 48 Pac. 282;Harding v. Durand, 138 Ill. 515, 28 N. E. 948; Hubbard v. Missouri Ins. Co., 25 Kan. 172; Culp v. Culp, 51 Kan. 341, 32 Pac. 1118, 21 L. R. A. 550;Huntington v. Bobbitt, 46 Miss. 528;Balch v. Arnold, 9 Wyo. 17, 59 Pac. 434. In some of these states the rule ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Spence, 5 Idaho 244 (48 P. 282); Harding v. Durand, 138 Ill. 515 (28 N.E. 948); Hubbard v. Missouri Ins. Co., 25 Kan. 172; Culp v. Culp, 51 Kan. 341 (32 P. 1118, 21 L. R. A. 550); Huntington v. Bobbitt, 46 Miss. 528; Balch v. Arnold, 9 Wyo. 17 (59 P. 434). In some of these states the rule d......
  • Rex v. Warner, No. 41103
    • United States
    • United States State Supreme Court of Kansas
    • December 6, 1958
    ...such mortgage is only an incident of the debt, and if the latter is barred from enforcement so also is the mortgage (Kulp v. Kulp, 51 Kan. 341, 32 P. 1118, 21 L.R.A. 550; King v. Rodgers, 108 Kan. 311, 195 P. 598; Jones v. Hammond, 118 Kan. 479, 235 P. 857; Troxell v. Cleveland Oil Co., 145......
  • Moore v. Rotenberry, 34202
    • United States
    • United States State Supreme Court of Mississippi
    • June 10, 1940
    ...they have an interest at the time they are sold for taxes, and not that in which they may subsequently acquire an interest." Kulp v. Kulp, 51 Kan. 341, 32 P. 1118, 1120, 21 L. R. A. 550; Pearsons v. American Inv. Co., 83 Iowa 358, 49 N.W. 853; Stevens v. Cassady, 59 Iowa 113, 12 N.W. 803; D......
  • Request a trial to view additional results

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