Sigler v. Phares

• Decision Date: 07 June 1919
• Docket Number: 22,222
• Citation: 105 Kan. 116,181 P. 628
• Parties: JOSEPH SIGLER, Appellee, v. J. W. PHARES et al., Appellants
• Court: Kansas Supreme Court

181 P. 628

105 Kan. 116

JOSEPH SIGLER, Appellee, v. J. W. PHARES et al., Appellants

No. 22,222

Supreme Court of Kansas

June 7, 1919

Decided January, 1919.

Appeal from Trego district court; JACOB C. RUPPENTHAL, judge.

Reversal ordered and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MORTGAGE FORECLOSURE -- Second Mortgagee a Party -- Sale under First Mortgage -- Confirmation -- Second Mortgagee's Right of Redemption. The holder of a first mortgage on a tract of land brought an action to foreclose it. A second mortgagee who was made a party asked the foreclosure of his lien as well. The owner of the fee pleaded that the second mortgage had been paid. The trial of this issue was postponed to a later term of court; and, before it was had, judgment was rendered in favor of the first mortgagee, the land was sold thereon and bid in by him for the amount of his lien, and the sale was confirmed. Four months after the sale a judgment was rendered in favor of the second mortgagee, declaring that he held a second lien and was entitled to all the rights and benefits of the redemption laws with respect to the sale under the first lien. Eleven months after the sale the owner of the fee made a redemption therefrom. Two months later the second mortgagee attempted to redeem by paying the amount of the bid, with interest and costs, to the clerk. Held, that such attempted redemption was ineffectual, inasmuch as the exercise of the owner's exclusive right to redeem within twelve months of the sale vested in him a title freed from all claims of the second mortgagee.

2. SAME--Right to Redeem -- "Defendant Owner" -- Statute Construed. One to whom land has been conveyed subject to a mortgage, and who is made a party in an action to foreclose it, is the person referred to by the statute giving an exclusive right of redemption for twelve months to the "defendant owner."

3. SAME--No Equitable Grounds for Disturbing Judgment. The circumstances presented are held not to justify an interference upon equitable grounds with the ordinary operation of the redemption law.

Herman Long, of Wa Keeney, for the appellants.

David Ritchie, of Salina, and S. M. Hutzel, of Wa Keeney, for the appellee.

Mason J., Dawson, J., not sitting.

OPINION

MASON, J.:

In 1909 Lou A. Sigler, the owner of a tract of land, executed a first mortgage upon it for $ 1,600 to T. M. Patterson, and a second mortgage for $ 800 to Joseph Sigler, his wife joining in the execution of the mortgages and the notes which they secured. In 1913 Lou A. Sigler was adjudged a bankrupt and his trustee conveyed the land, subject to all liens and incumbrances, to J. W. Phares, for $ 25. In December, 1914, Patterson brought an action to foreclose his mortgage, Phares and Joseph Sigler, the second mortgagee, being among the defendants. The mortgagors were also named as parties, but were served only by publication and did not appear. Joseph Sigler filed a cross petition asking the foreclosure of his mortgage, and Phares answered alleging that it had been paid. On March 2, 1915, a judgment was rendered in favor of the first mortgagee, Patterson, the trial of the issue between the second mortgagee and the owner being postponed until the September term of court. In May, 1915, an order of sale was issued on the judgment already rendered, and the land was sold to Patterson for substantially the amount of his lien, confirmation being made the same month. In September, 1915, Joseph Sigler obtained a judgment finding that he had a second lien on the land for the amount of his claim, and adjudging that he was entitled to redeem from the sale under the first mortgage. In April, 1916, Phares redeemed the land by paying the amount of the bid, with interest. In the following June Joseph Sigler deposited with the clerk of the court a like amount, with the additional interest, for the purpose of effecting a redemption in his own behalf. In December, 1917, he brought the present action, asking that the land be sold to pay his lien, and for such other relief as might be deemed just. Judgment was rendered in his favor, declaring that his attempt to redeem was effective, and ordering the sheriff to make him a deed. Phares appeals, other defendants joining with him.

The decision of the case depends largely upon the interpretation of the judgment rendered in the former action. The portion of the record thereof material for present purposes reads as follows:

"And thereupon this cause is tried to the court--and the court, after hearing the evidence, finds . . . that the allegations and averments of the answer and cross-petition herein are true. That there is due from the defendants Lou A. Sigler and Lillie B. Sigler his wife to the defendant Joseph Sigler the sum of one thousand two hundred and seventy-four dollars and thirty-four cents ($ 1,274.34) on the note and mortgage sued on in the cross petition herein, that said note specifies, that said indebtedness shall bear and draw interest at the rate of eight (8) per cent per annum from its date until paid. The court further finds that the lien claim and judgment of the said Joseph Sigler is a second lien on the land and tenements described in his cross petition and set forth in the petition of the plaintiff. . . . It is therefore considered, ordered and adjudged by the court, that the said defendant Joseph Sigler do have and recover of and from the said defendants in rem the said sum of one thousand two hundred and seventy-four and 34/100 dollars, the amount so as aforesaid found to be due, to said defendant. That said judgment for $ 1,274.34 draw and bear interest at the rate of eight (8) per cent per annum from this date until paid and upon request of the said Joseph Sigler execution issue; that the said defendant Joseph Sigler is a judgment creditor of the said defendants Lou A. Sigler and Lillie B. Sigler, and entitled to all the rights and benefits of the redemption laws of the state of Kansas, from the sale of the said real estate under the mortgage lien of the plaintiff herein, T. M. Patterson."

We regard this record merely as a statement that the court had decided the issue of fact between Joseph Sigler and Phares--as to whether the second mortgage had been paid--in favor of Sigler, and in addition thereto a recital of the legal consequences resulting from such decision--the announcement of a decree carrying into effect the rights that attached to the ownership of the mortgage, now that it was found...