Ordway v. Cowles

• Decision Date: 07 February 1891
• Citation: 25 P. 862,45 Kan. 447
• Parties: GEORGE ORDWAY v. JOSEPH COWLES et al
• Court: Kansas Supreme Court

25 P. 862

45 Kan. 447

GEORGE ORDWAY v. JOSEPH COWLES et al

Supreme Court of Kansas

February 7, 1891

Error from Greenwood District Court.

THE opinion states the case.

Judgment reversed.

R. P Kelley, for plaintiff in error.

John Marshall, for defendants in error.

GREEN C. All the Justices concurring.

OPINION

GREEN C.:

This was an action begun in the district court of Greenwood county, by Cowles & Eldridge against E. O. Walton, to foreclose a mortgage. The coupon notes and mortgage were executed on the 1st day of January, 1880, and matured in three years. This action was commenced on the 11th day of October, 1887; service was made upon Walton by publication; on the 5th day of January, 1888, George Ordway, the plaintiff in error, asked to be made a party to the suit, and leave was granted, and, on the 27th of the same month he filed his answer, setting forth -- first, a general denial; second, his ownership and possession of the land described in the mortgage, and that such ownership was by virtue of tax deeds duly executed; and third, the statute of limitations; that more than five years had elapsed from the time the notes and mortgage became due to the beginning of the action, and asked that his title be quieted against the mortgage in suit. To this answer the plaintiffs below replied by a general denial, and that the tax deeds were void, and asked to have title quieted against them. To this reply Ordway demurred; his demurrer was overruled. When the cause came on for trial the court held that the burden of proof was upon Ordway, to which he excepted. Upon the issues joined, a trial was had, and on May 31, 1888, a judgment and decree of foreclosure rendered in favor of Cowles & Eldridge. The court found that the tax deeds of Ordway were invalid, and gave judgment for the amount of his taxes and costs, and that the same should be first paid out of the proceeds of the sale of the mortgaged premises, and, upon the payment of such sums, the title was to be quieted. To this judgment and decree Ordway excepted and brings the case here, assigning error.

I. The first claim made is, that the court committed error in overruling his demurrer to the reply of the plaintiffs below. This was not error. The reply contained a general denial, and alleged that the tax deeds were void, because no notice of the tax sale of 1881 was published by the county treasurer, as required by law. These allegations constituted proper defenses and the demurrer was properly overruled. (Flint v. Dulany, 37 Kan. 332, 15 P. 208.)

II. It is next claimed that the court erred in holding that the burden was upon plaintiff in error. A reference to the answer will show that he alleged that he was the legal and equitable owner of the land, and also in possession thereof, and that his ownership was by virtue of certain tax deeds duly executed by the county clerk of Greenwood county. The deeds were not set out in full, or made a part of the answer. Under the state of the pleadings, there was no substantial error in the ruling of the trial court which cast the burden upon the plaintiff in error.

III. The plaintiff in error insists that the note and mortgage of the plaintiffs below were barred by the statute; that the notes became due January 1, 1883, and that the five years had completely run before he filed his answer. The suit was commenced on the 14th (lay of October, 1887, and the five years had not elapsed; besides, we do not think that Ordway can avail himself of the statute of limitations. He claims under a distinct and independent title, in no way derived from the mortgagor. Generally, the plea of the statute of limitations is a personal privilege, and a third party cannot interpose the defense. (Baldwin v. Boyd, 18 Neb. 444, 25 N.W. 580; Wood, Lim., 1st ed., § 41; 10 Am. & Eng. Encyc. of Law, p. 710; 7 Wait, Act. & Def., p. 236; Watson v. Kirkwood, 17 Kan. 9.)

Walton the maker of the notes and mortgage, could not...