Penn Mut. Life Ins. Co. v. Tittel
| Decision Date | 07 June 1941 |
| Docket Number | 35106. |
| Citation | 153 Kan. 747,114 P.2d 312 |
| Parties | PENN MUT. LIFE INS. CO. v. TITTEL et al. |
| Court | Kansas Supreme Court |
Appeal from District Court, Russell County; C. A. Spencer, Judge.
On motion for rehearing.
Motion denied.
For former opinion, see 153 Kan. 530, 111 P.2d 1116.
J. C Ruppenthal, of Russell, for appellants.
George W. Holland, Clifford R. Holland, and Herbert N. Holland, all of Russell, for appellees.
In a motion for rehearing counsel for appellants call our attention to language used by Justice Brewer in Bradley v. Parkhurst, 20 Kan. 462, 466, as follows: "*** the practice has been quite common in this state to bring in as parties defendant, in a foreclosure suit, all who claim any interest in the mortgaged premises, whether subordinate or adverse, to the mortgagor's title."
Also cite many other cases of similar import decided by this court, down to and including Motor Equipment Co. v Winters, 146 Kan. 127, 133, 69 P.2d 23, 28, where it was said: "*** it was the universal practice of good lawyers to make all record lienholders and others claiming any right title, or interest, in the land, parties defendant in order that all rights and interests might be determined in a single action."
Counsel express the fear that our opinion in this case upsets this long line of decisions. There is no reason for such a fear. Nothing said in the opinion justifies that view.
In this case plaintiff, in foreclosing its mortgage, properly made defendants a large number of persons, firms and corporations which the records indicated had or might have some right, title or interest in or lien upon the property, and alleged that the interest, title or lien of each of the defendants was inferior to the lien of plaintiff's mortgage. Each of the defendants who answered admitted that his claim of title or interest was inferior to that of plaintiff's mortgage. As to them and as to the nonanswering defendants the court was authorized to render a decree that the lien of plaintiff's mortgage was superior to the right, title, interest and lien of the defendants.
In its petition plaintiff did not allege it had title to the property, or that it was in possession of the property. No pleading filed on behalf of any defendant admitted or disclosed that plaintiff had title to the property, yet the scrivener who prepared the decree of foreclosure put in it a provision quieting title as of the...
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...etc. v. Miltner, 149 Kan. 847, 89 P.2d 874; Penn Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, Syl. 4, 111 P.2d 1116, on rehearing, 153 Kan. 747, 114 P.2d 312; Liggett v. Liggett, 165 Kan. 527, at page 530, 195 P.2d 577, at page Where a judgment is void, it may be set aside at any time (G.S......
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...itself. (Penn Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, Syl. 2, 111 P.2d 1116 [ (1941) ] [opinion on motion for rehearing, 153 Kan. 747, 114 P.2d 312 (1941) ], and Mid-Continent Supply Co. v. Hauser, 176 Kan. 9, 15, 269 P.2d 453 [ (1954) "Conceding, for the sake of argument, that in one......
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