Levi v. Levi

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, Justice.
• Citation: Levi v. Levi, 149 Kan. 234, 86 P.2d 473 (Kan. 1939)
• Decision Date: 28 January 1939
• Docket Number: 34131.
• Parties: LEVI v. LEVI.

86 P.2d 473

149 Kan. 234

LEVI v. LEVI.

No. 34131.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

Where mortgagee purchased at foreclosure sale, extended redemption period and mortgagee applied for writ of assistance, upon hearing of application, all questions affecting mortgagee's right to possession were necessarily in issue and were res judicata in subsequent action between same parties involving rights to possession. Gen. St.1935, 67-3a01 to 67-3a07.

Any agreement between mortgagor and mortgagee subsequent to foreclosure decree, which would have affected mortgagee's right to writ of assistance, should have been presented to court upon hearing of application for writ.

Where mortgagee who obtained foreclosure decree sought writ of assistance, every question essential to determination of mortgagee's right to possession was determined by ruling of court on application for writ as respects mortgagor's right subsequently to redeem.

In an action to foreclose a real estate mortgage, in which the plaintiff was the purchaser at the foreclosure sale and in which the period of redemption once extended had expired and plaintiff had applied for a writ of assistance, it is held that upon the hearing of the application for the writ all questions affecting plaintiff's right to the possession of the property at that time were necessarily in issue. Further held, that such questions then in issue and determined were not open to litigation in a subsequent action between the same parties involving their respective rights to the possession of the property.

Appeal from District Court, Hodgeman County; Lorin T. Peters, Judge.

Action by William Levi against Christ Levi to set aside sheriff's deeds and to permit plaintiff to redeem from a former foreclosure sale and for an accounting. From a judgment sustaining a demurrer to the petition, plaintiff appeals.

John A Etling and W. N. Beezley, both of Kinsley, for appellant.

O. A Wilson, of Jetmore, for appellee.

HARVEY Justice.

This was an action to set aside certain sheriff's deeds, to permit plaintiff to redeem from a former foreclosure sale and to extend the time therefor, and for an accounting. Defendant demurred to the petition. Upon the hearing of the demurrer by agreement of counsel, the court considered all the files and records of the foreclosure action as though they had been made a part of the petition. The demurrer was sustained, and plaintiff has appealed.

The record may be summarized as follows: On October 3, 1933, Christ Levi, the owner and holder of certain notes, executed by William Levi and secured by a mortgage on certain real property in Hodgeman county owned by him, commenced an action against William Levi and others on the notes and to foreclose the mortgage. Defendants were served personally with summons, but failed to answer or plead otherwise, and in due time plaintiff obtained a personal judgment on the notes and a decree foreclosing the mortgage, and an order of sale issued. On December 18, 1933, the real property was sold at sheriff's sale for the full amount of the judgment, interest, taxes and costs to Christ Levi, the plaintiff in the action. This sale was confirmed and the period of redemption fixed at eighteen months.

On June 6, 1935, on motion of the defendants, the court, acting under Chapter 226, Laws 1935 (G.S.1935, 67-3a01 to 3a07), extended the period of redemption to December 1, 1936, upon conditions, (1) that defendants pay into court $60 immediately and $60 August 1, 1936, for pasture rent, (2) that defendant pay into court one third the value of crops harvested within the extended time, (3) that plaintiff have a lien upon all crops to secure these rents, (4) that plaintiff have one third of wheat allotment money for 1935 and 1936, (5) that plaintiff have the right to enter upon the premises at a suitable time in 1936 for the purpose of sowing wheat, if defendants had not redeemed, and (6) that the moneys paid into court be applied first upon taxes, then upon interest and principal on plaintiff's judgment.

On June 1, 1936, counsel for Christ Levi, acting on the theory Chapter 226, Laws 1935, was not applicable and that the period of redemption had expired July 18, 1935, in view of the opinion of this court in Kansas City Life Ins. Co. v. Anthony, 142 Kan. 670, 52 P.2d 1208, 104 A.L.R. 364, moved the court for an order directing the sheriff to execute a deed. This motion was considered by the court and sustained June 4, 1936, and in compliance with the order the sheriff executed to Christ Levi a sheriff's deed, which was recorded promptly. The defendant William Levi appealed to the supreme court from the order of the trial court directing the sheriff to execute the deed. This appeal was dismissed by the supreme court October 16, 1936, on motion of the appellee, for the reason appellants had failed to file abstract and brief. On November 30, 1936, defendants filed a new notice of appeal from the order of the trial court of June 4. This was dismissed by the supreme court May 15, 1937. Defendants made no effort to redeem by payment or tender to the clerk of the district court by December 1, 1936, or at any time.

The plaintiff, Christ Levi, having changed attorneys, filed a motion December 22, 1936, stating there was uncertainty about the validity of the sheriff's deed made pursuant to the order of the court of June 4 (see Johnson v. Schrepel, 144 Kan. 111, 58 P.2d 51), that defendants had appealed from that order and retained possession of the property, that defendants had not redeemed the property but were still in possession claiming the right to remain in possession, and asking for an order directing the sheriff to make a new deed to plaintiff and a further order directing the issuance to the sheriff of a writ of assistance, dispossessing defendants and placing plaintiff in possession of the property. This motion was heard and allowed January 6, 1937. A new sheriff's deed was issued to Christ Levi, and recorded, and a writ of assistance was issued under which the sheriff dispossessed defendants and placed Christ Levi in possession of the property April 19, 1937. But defendants, refusing to recognize the authority of the sheriff, after being dispossessed and in the absence of plaintiff, went back into possession of the property. This was called to the attention of the court by a motion issued May 27, 1937, supported by affidavit, asking for an order requiring the defendant William Levi to appear and show cause why he should not be punished for contempt. On the hearing of this motion, June 4, 1937, the court ordered the issuance of an alias writ of assistance commanding the sheriff forthwith to place the plaintiff. Christ Levi, in possession of the property, and to remove defendants and any of their personal property from the premises. This appears to have been done. Notice was given opposing counsel of each of the motions above mentioned, and counsel for each party appeared in court on the respective hearings on the motions.

No appeal was taken from the order of the court of January 6, 1937, granting the writ of assistance, nor from the order of June 4, 1937, granting the alias writ of assistance.

Thereafter, and on July 7, 1937, William Levi brought this action. In his petition he recites many, not all, of the matters above stated, and alleged that after the appeal was taken from the order of the court of June 4, 1936, directing the sheriff to make a deed for the property to Christ Levi, an oral agreement was made between the parties, through their attorneys, that if the appellants would dismiss their appeal Christ Levi would convey the property to defendants in that action upon the payment to him, on or before December 1, 1936, of the amount necessary to redeem the property; that relying on that agreement appellants dismissed their appeal, and that on or shortly before November 30, 1936, they tendered to Christ Levi personally the full amount necessary to redeem, but that he refused to accept payment and refused to reconvey the property.

It was...