Hines v. Kays

• Citation: 93 Kan. 209,144 P. 240
• Decision Date: 14 November 1914
• Docket Number: 18,608
• Parties: H. B. HINES, Appellee, v. JOHN O. KAYS et al., Appellants
• Court: Kansas Supreme Court

144 P. 240

93 Kan. 209

H. B. HINES, Appellee, v. JOHN O. KAYS et al., Appellants

No. 18,608

Supreme Court of Kansas

November 14, 1914

Decided July, 1914.

Appeal from Johnson district court; JABEZ O. RANKIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MORTGAGE -- Foreclosure -- Cross-petition -- Validity of Second Lien Should Have Been Determined. In a foreclosure action the holder of a subsequent lien, who is made a defendant, is entitled to have its validity determined before the property is sold.

F. W. Casner, of Kansas City, Mo., for the appellants.

W. H. L. Watts, of Kansas City, Mo., for the appellee.

OPINION

MASON, J.

H. B. Hines brought an action to foreclose a real-estate mortgage. F. W. Casner was made a defendant under the allegation that he claimed an interest in the property, which in fact was subject to that of the plaintiff. Casner filed an answer consisting of a general denial and a cross-petition setting up a subsequent mortgage, which he asked to have foreclosed. The cross-petition was stricken out on motion of the plaintiff. Judgment was rendered foreclosing the first mortgage, on which the property was sold. Casner appeals, and among other rulings complains of that striking out his cross-petition.

No sufficient reason appears for striking out Casner's cross-petition. He was entitled to have his claim adjudicated in this action. (27 Cyc. 1605.) The right to have his interest determined before the property was sold was a substantial one, the denial of which was prejudicial. The plaintiff contends that the mortgage to Casner was extinguished by a later warranty deed. The evidence regarding this was taken upon a motion to confirm the sale. Casner testified that he held the mortgage and deed in different capacities. He was entitled to have this question tried out upon issues made by the pleadings in the case. Because this right was denied him the sale will be set aside and the judgment modified so far as to allow the issue as to Casner's lien to be made up and tried out. In the cross-petition Casner asked to have new parties brought in merely that he might have personal judgment against them. To have refused this, while allowing the cross-petition to stand, would not have been error.

The defendant complains of a number of other rulings, some of which require brief mention. A demurrer to the amended petition was properly overruled, notwithstanding some generality in its statement. No copy of...