Richards v. Thompson

• Decision Date: 08 February 1890
• Parties: A. A. RICHARDS v. WM. THOMPSON, as Executor of the Estate of Kate Patterson, deceased, et al
• Court: Kansas Supreme Court

23 P. 106

43 Kan. 209

A. A. RICHARDS v. WM. THOMPSON, as Executor of the Estate of Kate Patterson, deceased, et al

Supreme Court of Kansas

February 8, 1890

Error from Sumner District Court.

EJECTMENT. Trial at the February term, 1887, and judgment for defendants. The plaintiff Richards brings the case here.

Judgment reversed and remanded.

Lawrence & Richards, for plaintiff in error.

McDonald & Parker, for defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought in the district court of Sumner county on December 18, 1885, in the name of Robert Thompson against Kate Patterson and others, to recover lot 17 in block 59 in the city of Wellington. Afterward, and with the consent. of the parties, A. A Richards was substituted as the plaintiff in the place of Robert Thompson, and Kate Patterson having died the action was revived against Robert Thompson her executor, and against Margaret J. Thompson and others her devisees. The case was tried twice before the court without a jury, the second trial being upon the same evidence as was introduced on the first trial, and the court found generally in favor of the defendants and against the plaintiff, and rendered judgment accordingly; and the plaintiff, as plaintiff in error, brings the case to this court for review.

The facts of the case are substantially as follows: On December 20, 1873, and prior thereto, Robert H. Thompson owned the land in controversy, and on that day mortgaged it to John G Tucker to secure the sum of $ 200, to become due on February 20, 1874. On January 25, 1876, Robert H. Thompson died, at Warner, in the state of New Hampshire, intestate, leaving as his sole heir his father, Robert Thompson. On August 8, 1877, the mortgage debt being overdue, and the mortgagee having no knowledge of the death of Robert H. Thompson, such mortgagee commenced an action in the district court of Sumner county to recover the mortgage debt and to foreclose the mortgage, making Robert H. Thompson and him alone the defendant. Service of summons was obtained by publication, and the foreclosure proceedings were carried on to final consummation; and on September 7, 1878, a sheriff's deed was executed under the foreclosure proceedings to Christiana Tucker for the property in controversy, and on the same day this deed was recorded. Also on the same day a tax deed was executed to Christiana Tucker for the same property on a tax sale made on September 7, 1875, for the taxes of 1874. The defendants' title to the property in controversy is founded upon the aforesaid sheriff's deed and tax deed; and the defendants, with their grantors, including Christiana Tucker, have held the possession of the property under such sheriff's deed and tax deed continuously since about the time when such deeds were executed. Sometime in the spring of 1885, A. A. Richards, an attorney at law at Wellington, Kansas, was informed by some person that the title to the property in controversy, as held by Christiana Tucker and her grantees, was not good, and from that time on until about November, 1885, he made extraordinary effort to ascertain who held the adverse, and, as he supposed, the better title; when finally, he ascertained, as he believed, that the adverse and paramount title was in the aforesaid Robert Thompson, of Warner, New Hampshire. After some correspondence between Richards and Thompson, Richards wrote to Thompson, as he states in his testimony, as follows: "I had made two propositions to him: that I would carry the suit through the district court and the supreme court for $ 1,000; or, if he did not want to do that, I would divide the cash proceeds of the litigation. He wrote to me and notified me to bring the suit and he would let me know about the terms afterward." In pursuance of this correspondence, and on December 18, 1885, Richards brought this action in the name of Thompson as plaintiff, signing the petition as follows: "A. A. Richards, attorney for the plaintiff." On January 7, 1886, Thompson executed a deed for the property to Richards, the consideration therefor being $ 600. The property was then and is now worth about $ 10,000. Since the execution of the last-mentioned deed, Richards's name was substituted for that of the original plaintiff, Thompson, and the action has since that time been carried on and conducted in the name of Richards as the plaintiff.

The principal questions urged in this case are with reference to Richards's supposed maintenance and champerty, and to the validity or invalidity of the aforesaid sheriff's deed and tax deed. Under the evidence in the case we do not think any other question could seriously be presented. Under the evidence the original title, which on December 20, 1873, and prior and subsequent thereto, was in Robert H. Thompson, unquestionably by his death passed to Robert Thompson, and by deed of conveyance passed from Robert Thompson to Richards, unless the sheriff's deed or tax deed has placed the title somewhere else.

As to the question of maintenance or champerty, we hardly think that there is much ground for urging the same. It does not appear from the evidence that any contract was made between Thompson and Richards, except that Richards should commence the action for Thompson. There was no contract made with reference to what Richards's compensation should be. Also, in this state, and under § 6 of the conveyance act, the purchase of the property by Richards from Thompson was not in violation of law. Said § 6 reads as follows:

"SEC. 6. Any person claiming title to real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with like effect as if he was in the actual possession thereof."

The objections urged by the plaintiff against the sheriff's deed are as follows: First, all the foreclosure proceedings upon which the sheriff's deed is founded took place long after the death of Robert H. Thompson, the mortgagor, and the only defendant in such foreclosure proceedings. Second, no summons was ever issued or served in the foreclosure proceedings. The service, however, was by publication. Third, there was no foreclosure decree in the foreclosure proceedings. It would seem from the record that this is a mistake. Fourth, the sheriff's deed was executed on September 7, 1878, upon a judgment stated in the sheriff's deed to have been rendered on November 15, 1878. The judgment was in fact rendered on November 15, 1877.

The first objection urged against the sheriff's deed we think is sufficient. In this state a mortgagee has...