Gibson v. Johnson

• Decision Date: 10 March 1906
• Docket Number: 14,521
• Citation: 73 Kan. 261,84 P. 982
• Parties: CHARLES E. GIBSON v. SOLOMON JOHNSON
• Court: Kansas Supreme Court

84 P. 982

73 Kan. 261

CHARLES E. GIBSON v. SOLOMON JOHNSON

No. 14,521

Supreme Court of Kansas

March 10, 1906

Decided January, 1906.

Error from Rawlins district court; ABEL C. T. GEIGER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

TITLE--Suit to Quiet--Mortgage Barred by Statute of Limitations. The law does not permit a mortgagor to quiet title against the holder of his mortgage on the naked ground that the right to foreclose the mortgage has become barred by the statute of limitations.

Chambers & Chambers, and G. Webb Bertram, for plaintiff in error.

J. P. Noble, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.

This proceeding in error arises from a suit to quiet title brought under the provisions of section 594 of the code of civil procedure (Gen. Stat. 1901, § 5081). The answer admitted the allegation of the petition that the defendant claimed an adverse interest in the land, and described such interest as one created by a mortgage given by the plaintiff to secure his unpaid note held by the defendant. Facts alleged in the petition not admitted by the answer were denied, and the prayer was merely that the defendant be allowed to depart from the court without costs being imposed upon him. The reply admitted the execution of the note and mortgage, but asserted that the defendant's right to recover upon them was barred by the statute of limitations. A demurrer to the reply was overruled, and an objection to the introduction of testimony suffered the same fate. Evidence responsive to the plaintiff's pleadings was demurred to without avail. A new trial was refused, and judgment was rendered for the plaintiff quieting his title against the defendant's mortgage, and ordering that instrument canceled of record. The legal propriety of these proceedings depends, of course, upon the use made of the statute of limitations.

Had the plaintiff been obliged to state the facts constituting his cause of action, he must have shown that the defendant was claiming an interest in the premises under a mortgage given by the plaintiff, that more than five years had elapsed since a cause of action accrued to the defendant upon such mortgage, and that no suit had been brought to enforce it--the legal conclusion being that, because it was barred by the statute of limitations and no longer could support an action, the plaintiff's otherwise perfect title ought to be quieted against it. Such a petition would be demurrable because the statute of limitations would constitute an indispensable element of the plaintiff's cause of action. The way to the relief demanded could not be opened except through its aggressive instrumentality, and if relief were granted it would be upon the basis of a purely negative plea, permissible only for the purpose of resistance--protection from disturbance--defense. (Corlett v. Insurance Co., 60 Kan. 134, 55 P. 844; Burditt v. Burditt, 62 Kan. 576, 64 P. 77.)

To avoid a direct assertion of the statute of limitations as a part of his cause of action the plaintiff filed a petition of the blind character which the law allows in this class of cases. He was, however, compelled to allege that the defendant claims an interest in the premises adverse to him, and that such interest is junior and inferior to his own rights. Under such a petition the plaintiff is bound to maintain the alleged superiority of his own title by proof, the question in a suit to quiet title being, Who has the paramount right? (Ordway v. Cowles, 45 Kan. 447, 25 P. 862.) If the proof relied on should consist of facts showing that a mortgage held by the defendant and constituting the basis of his claim is barred by the statute of limitations, relief must be denied the same as if the facts creating the bar had been pleaded in the petition, since the plaintiff must use it affirmatively and constructively in order to make out his case.

By his answer the defendant did nothing to relieve the plaintiff of his embarrassment. He merely defined the nature and extent of the claim which the...