Stroup v. Pepper

• Decision Date: 07 May 1904
• Docket Number: 13,278
• Citation: 76 P. 825,69 Kan. 241
• Parties: ELMER S. STROUP et al. v. I. N. PEPPER et al
• Court: Kansas Supreme Court

76 P. 825

69 Kan. 241

ELMER S. STROUP et al. v. I. N. PEPPER et al

No. 13,278

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Rooks district court; CHARLES W. SMITH, judge.

STATEMENT.

PLAINTIFFS in error, who were plaintiffs in the court below, are the five sons and one daughter, and heirs at law, of James T Stroup, who died April 9, 1889. He was owner of 160 acres of land, for the possession of which this ejectment action was brought. Mr. Stroup was a widower when he died, and resided with the two minor children on the land. A mortgage for the sum of $ 950, executed in Stroup's lifetime, was a lien on the land. His administrator procured an order of the probate court to sell the property for the purpose of paying debts of the estate. It was sold to one John Potter, subject to the mortgage, and he took possession. By mesne conveyances the record title passed to a corporation called the Bow Creek Irrigation Company. This company executed a mortgage on the 160 acres of land in controversy and other lands to E. S Huston, trustee, to secure the payment of two notes of $ 2500 each. With a part of the money loaned by Huston to the irrigation company the mortgage for $ 950 on the land was purchased and assigned to Huston for his better security.

The irrigation company defaulted in payment of the mortgage debt. A suit was begun by the mortgagee against the Stroup heirs plaintiffs in this ejectment action, and all other parties interested in the mortgaged premises, to foreclose the mortgage lien. Plaintiffs in this action, the children and heirs of James T. Stroup, answered in the foreclosure suit alleging that the mortgage on the land in controversy was void and constituted no lien thereon; that the irrigation company took no title to the land by the conveyance to it and that they were the owners of the. unencumbered fee. In his reply Huston, the mortgagee, pleaded the purchase and transfer of the prior $ 950 mortgage to himself, alleging that he was the holder of the note secured by it, and prayed a foreclosure. Upon motion of the Stroup heirs, defendants in that suit, all the allegations of the reply relating to the $ 950 mortgage were stricken from that pleading because it was not a part of the transaction out of which arose the mortgage executed by the Bow Creek Irrigation Company for $ 5000, the foreclosure of which was sought in the petition. A trial was had and a decree entered foreclosing the mortgage as to all the property except the land in controversy in this action.

The land involved now, at the commencement of this action, had been conveyed by the Bow Creek Irrigation Company to I. N. Pepper, and deeded by the latter to E. S. Huston, the mortgagee of the irrigation company and plaintiff in the foreclosure suit. In this action of ejectment by the Stroup heirs, Huston claimed title and right to possession based on the administrator's deed and a tax deed. He also claimed the right of a mortgagee in possession, by reason of his ownership of the mortgage given to secure the debt of $ 950. Plaintiffs below contended that the administrator's deed and the tax deed were both void, and that all the rights of Huston to the $ 950 mortgage were adjudicated in the foreclosure suit. A jury trial was had and a general verdict was returned in favor of Charles B. Stroup, Frank A. Stroup and Oscar W. Stroup for a recovery of their interest in the land. Their coplaintiffs -- the three other heirs -- were defeated in the action. The court in entering judgment found that the above-named persons were each entitled to the possession of a one-sixth interest in the 160 acres of land, after paying defendant Huston a sum equal to one-sixth of the mortgage for $ 950, and certain taxes and interest. They filed no motion for a new trial. The other plaintiffs, Elmer S. Stroup, George W. Stroup, and Amanda A. Pratt, were denied a recovery, and judgment for costs was rendered against them. They have come here by proceedings in error. Huston has filed a cross-petition in error. The court below instructed the jury as follows:

"I instruct you, as a matter of law, that the decree of this court rendered in the case of E. S. Huston, Trustee, v. The Bow Creek Irrigation Company, E. S. Stroup, Charles B. Stroup, Frank A. Stroup, George W. Stroup, Oscar W. Stroup, Amanda A. Pratt, and others, is not binding on the defendants or either of the defendants in this case. The records and proceedings in that case offered in evidence here you are not to consider in reaching your verdict."

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JUDGMENTS -- Rule of Res Judicata Stated and Distinguished. The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.

2. JUDGMENTS -- Decree in Foreclosure Held Not to be an Adjudication of an Issue in Ejectment. In an action of ejectment defendant claimed the rights of a mortgagee in possession. Plaintiff showed that in a prior suit between the same parties defendant in the ejectment action sought to foreclose the mortgage relied on to justify possession, but it appeared that, after setting it up as a cause of action, all reference to it was stricken from the pleadings by the court because of improper joinder of causes of action. Held, that, although the mortgage might have been foreclosed in the equity suit, the rights of the mortgagee were not actually determined, and that the decree therein did not affect the rights of defendant as a mortgagee in possession in the subsequent ejectment action.

W. B. Ham, for plaintiffs in error.

J. W. Gleed, and J. L. Hunt, for defendants in error; Gleed, Ware & Gleed, of counsel.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This case was decided in October last and the judgment of the court below reversed. (73 P. 896.) A rehearing was allowed, and the question submitted to counsel for argument was whether the decree in the foreclosure suit of Huston, Trustee, v. The Bow Creek Irrigation Company and others was res judicata respecting the rights claimed by Huston in the ejectment action as a mortgagee in possession.

The mortgage for $ 950 on the land in controversy held by Huston was set up for the first time in the foreclosure suit in his reply to the answer of the Stroup heirs. Upon motion of the latter all allegations concerning it were stricken out. In the former opinion Mr. Justice Pollock, speaking for the court, said:

"True, all the allegations as to the prior mortgage were, upon motion, stricken from the reply, and the plaintiff was denied the right actually to litigate his rights under that mortgage; but the test of the effect of a former judgment or decree is not 'what was actually litigated and determined' but 'what was put in issue, and might have been determined under the issues. '"

The language quoted is too general when applied to the facts of the present case. This was an action in ejectment. The former was an equitable suit in foreclosure. The true rule, now well established, is that where a second action between the same parties is upon a different claim or demand the judgment in the prior...