Redden v. Metzger

• Decision Date: 11 April 1891
• Citation: 26 P. 689,46 Kan. 285
• Parties: REDDEN v. METZGER et al.
• Court: Kansas Supreme Court

26 P. 689

46 Kan. 285

REDDEN v. METZGER et al.

Supreme Court of Kansas

April 11, 1891

Syllabus

Where upon the trial of an action of ejectment to recover a quarter section of land, it appeared that in a foreclosure suit in another county the defendant had answered and set up his title to the same land under a tax-deed executed since the date of the mortgage, and in the trial of such foreclosure suit the court found that the defendant had a valid tax-deed and was the owner and in the actual possession of such land and that no other party to the suit had any lien thereon, and then rendered a judgment against the mortgagor, and decreed that certain lands be ordered sold to satisfy said mortgage but did not include the land claimed by the defendant under his tax-deed, held, that such special finding of fact in favor of the defendant became a part of and was included in the judgment and decree in the foreclosure suit, and the same became res adjudicata as to the parties to the action and all persons claiming under them.

Commissioners’ decision. Error from district court, Shawnee county; JOHN GUTHRIE, Judge.

A. L. Redden and H. H. Harris, for plaintiff in error.

Johnson, Martin & Keeler and G. A. Huron, for defendants in error.

OPINION

GREEN, C.

This was an action of ejectment, brought by the plaintiff in error against the defendants in error, in the district court of Shawnee county, to recover the S.E. ¼ of section 11 in township 10, of range 16. The defendants set up a claim of title under a certain tax-deed, and also alleged that the question of the defendant’s title had been finally adjudicated in a suit commenced in the district court of Leavenworth county, and set up such decree and judgment as being res adjudicata . The case was tried by the court without a jury, and judgment rendered in favor of the defendants. It seems that George R. Hines was the owner of the undivided half of this land on the 1st day of July, 1873. In October of the same year he conveyed his interest to W. H. Carson, who deeded to Harrison C. Hines, and he sold the same to the plaintiff in error on the 18th day of August, 1884. The defendants’ claim to the land is based upon the possession of Eli W. Metzger on March 1, 1883, under a certain tax-deed, and a foreclosure suit commenced by W. J. Buchan, as trustee, in the district court of Leaven worth county, on the 7th day of March, 1883, against George C. Hines, Harrison C. Hines, Eli W. Metzger, et al., to foreclose a mortgage executed by George R. Hines and wife on the property in controversy, and several other tracts in Leavenworth, Shawnee, and other counties. In this foreclosure case, summons was served upon Harrison C. Hines and George R. Hines in Jefferson county on the 13th day of March, 1883, by the under-sheriff of the county, but in making his return he signed it, "Sheriff of Leaven-worth County, Kansas, by W. S. Van Cleave, Under-Sheriff." The summons being from the latter county, the officer had doubtless neglected to erase the printed matter on the summons. On the 24th day of December, 1886, and upon proper notice to the plaintiff, but without the knowledge of the original defendants named, the sheriff’s return, by leave of the court, was amended so as to conform to the facts, and was signed by George Davis, sheriff of Jefferson county, by W. S. Van Cleave, under-sheriff. The defendants Hines made default. Metzger, by his answer, alleged that he was the owner of this quarter section of land in controversy by virtue of a tax-deed made subsequent to the mortgage, and that therefore the land was not subject to the mortgage. In the trial of this case in the district court of Leavenworth county, on the 5th day of July, 1884, the following finding of fact, with others, was made: "That the defendant Eli W. Metzger has a valid tax-deed of the south-east quarter of 11, township 10, range 16, in Shawnee county, Kansas, and is the owner and is in the actual possession thereof, and that no other party to this suit has any lien thereon." The contention of the plaintiff in error is that the district court of Leaven worth county rendered no judgment whatever upon this finding, and therefore nothing was settled in that case so far as the rights of the parties to this suit are concerned; that no person is bound by any litigation until there is a final judgment; that until a court renders a judgment upon a verdict of the jury, or its own findings, it is always susceptible of further investigation and of further litigation. It is conceded by the defendants in error that plaintiff in error has shown such a title to the undivided half of this land sued for as would prevail, but for the fact that it has been extinguished by the foreclosure proceedings in the district court of Leavenworth county, and that the...