Penn Mut. Life Ins. Co. v. Tittel

• Decision Date: 12 April 1941
• Docket Number: 35106.
• Citation: 153 Kan. 530,111 P.2d 1116
• Parties: PENN MUT. LIFE INS. CO. v. TITTEL et al.
• Court: Kansas Supreme Court

111 P.2d 1116

153 Kan. 530

PENN MUT. LIFE INS. CO. v. TITTEL et al.

No. 35106.

Supreme Court of Kansas

April 12, 1941

Rehearing Denied June 7, 1941.

Syllabus by the Court.

Generally one who does not have possession or title cannot maintain an action to quiet title to real property.

A mortgage on real property is a "lien" thereon, the title remaining in mortgagor, and in foreclosure of such a mortgage title to property does not pass from mortgagor or his successor in interest until sheriff's deed is duly issued.

In petition in action to foreclose real estate mortgage where plaintiff alleged that mortgage was a first and prior lien upon property and that any title or claim of defendants was subject to plaintiff's lien, allegation gave the court no authority to embody in decree of foreclosure a provision quieting title as of date of decree against defendants.

Where a court has general jurisdiction of subject matter and jurisdiction of parties, its judgment must be within scope of issues presented by pleadings, and a court has no jurisdiction to embody in its judgment a provision which is foreign to issues presented by pleadings.

A judgment rendered by a court which has no jurisdiction to render the judgment is void and may be set aside at any time by motion or other appropriate proceedings. Gen.St.1935 60-3009.

Where mortgagor after mortgaging land executed mineral deeds binding mortgagor, his heirs and administrators to warrant property to grantees and their assigns against claims of all persons, and mortgagor's heirs thereafter redeemed land from sheriff's sale with proceeds of loan obtained from a bank under a mortgage warranting title as against everything except mineral deeds and gas leases of record, owners of interests under mineral deeds, which were of record, were not obligated to pay part of cost of redemption, and bank had no claim under mortgage against such owners.

1. The general rule is that one cannot maintain an action to quiet title to real property who does not have possession thereof or title thereto,

2. A mortgage on real property is a lien thereon; the title remains in the mortgagor. In the foreclosure of such a mortgage the title to the property does not pass from the mortgagor or his successor in interest until the sheriff's deed is duly issued.

3. In the petition in an action to foreclose a mortgage on real property plaintiff alleged the mortgage was a first and prior lien upon the property and that any title, lien, interest or claim of any of the defendants was subject to and inferior to plaintiff's lien. Held, this gave the court no authority to embody in the decree of foreclosure a provision quieting the title as of the date of the decree against any of the defendants.

4. Where a court has general jurisdiction of the subject matter and jurisdiction of the parties, its judgment or decree must be within the scope of the issues presented by the pleadings. The court has no jurisdiction to embody in its judgment or decree a provision which is foreign to the issues presented by the pleadings.

5. A judgment rendered by a court which it has no jurisdiction to render is void and may be set aside at any time by motion or other appropriate proceedings.

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Suit by the Penn Mutual Life Insurance Company against Fred Tittel and others to foreclose a real estate mortgage, wherein after the property was redeemed from a sheriff's sale defendants C. W. Shaffer and others filed an application asking the trial court to determine whether they were under obligation to contribute to the amount paid by the mortgagor's heirs to redeem the property. From an unsatisfactory judgment, Fred Tittel and others appeal opposed by C. W. Shaffer and others.

J. C. Ruppenthal, of Russell, for appellants.

Geo. W. Holland, Clifford R. Holland, and Herbert N. Holland, all of Russell, for appellees.

HARVEY Justice.

This was an action to foreclose a real estate mortgage. There was a decree of foreclosure, a sheriff's sale, and the property was redeemed from the sale. The present controversy arises between classes of defendants and involves the duty of one class to contribute to the cost of redemption, and also involves the question of their present interest in the property.

The pertinent facts may be stated briefly as follows: On November 1, 1919, Frederick Tittel and wife executed to the plaintiff their mortgage on 320 acres of land in Russell county, being the northeast quarter, and the west half of the southeast quarter, and the south half of the southwest quarter, of Section 14, Township 15, Range 14 West, to secure their note for $7,500. This mortgage was kept in force by successive extension agreements until it became in default shortly before this action was filed in November, 1937. Frederick Tittel's wife died prior to July, 1929. Thereafter Frederick Tittel executed mineral deeds for fractional shares of the oil, gas and other minerals in and under, or that might be produced from, the south half of the southwest quarter of the section. He executed similar mineral deeds covering only the west half of the southeast quarter of the section. Each of these mineral deeds contained the following provision: "*** and I do hereby bind myself, my heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said grantee herein, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof."

By the time this action was brought the grantees of those mineral deeds had conveyed fractional portions of their shares to various parties. No mineral deed had been executed covering the northeast quarter of the section. There were also oil and gas leases covering all or a part of the property. Frederick Tittel died intestate December 11, 1936, leaving as his sole heirs at law five adult children and one minor grandson. They will be spoken of hereafter as the Tittel heirs. In the foreclosure action the Tittel heirs were made parties defendant, also the record holders of interests under the respective mineral deeds and the holder of a second mortgage. The petition in the action with respect to the defendants alleged that they "have or claim to have some right title and interest in and to the above described real estate, the nature of which is to this plaintiff unknown, but plaintiff avers that whatever right, title or interest said above named defendants may have in and to said above described real estate, the same is inferior, junior and subsequent to plaintiff's right under and by virtue of said note and mortgage." Summons was served personally on the Tittel heirs and upon some of the other defendants, and as to other defendants summons was by publication. The holder of the second mortgage answered and asked to have that foreclosed as a second lien. The guardian of the minor Tittel heir answered setting up his interest, and six of the defendants who held fractional interests under the mineral deeds answered setting out their interests, and the administrator of the estate of Frederick Tittel answered. None of the other defendants answered. On May 8, 1938, a decree of foreclosure was rendered. This found the amount due plaintiff on the first mortgage and also the amount due on the second mortgage and contained appropriate provisions for the sale of the property to satisfy those liens. It also contained a recital that the owners of interests under the mineral deeds "who had appeared and filed answers"...