The City of Hutchinson v. Hutchinson

• Decision Date: 06 June 1914
• Docket Number: 18,684
• Citation: 141 P. 589,92 Kan. 518
• Parties: THE CITY OF HUTCHINSON v. CLINTON C. HUTCHINSON (E. M. TRAYLOR, Appellee; W. B. LOWRANCE, Appellant)
• Court: Kansas Supreme Court

141 P. 589

92 Kan. 518

THE CITY OF HUTCHINSON v. CLINTON C. HUTCHINSON (E. M. TRAYLOR, Appellee; W. B. LOWRANCE, Appellant)

No. 18,684

Supreme Court of Kansas

June 6, 1914

Decided January, 1914.

Appeal from Reno district court; CHARLES E. BRANINE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. LACHES--No Bar to Relief Where Parties are Not Prejudicially Affected by the Delay--Foreclosure of Mortgage. The doctrine of laches is equitable in character, and mere lapse of time is not a bar to relief when the rights of the parties to the suit have not been prejudicially affected by the delay, the rights of innocent third persons will not be prejudicially affected, and nothing has occurred to create an equitable estoppel against the moving party or to create an equity in favor of his adversary.

2. SAME--Right of Action Suspended by Legal Proceedings--Tolls Statute of Limitations. Where the character of legal proceedings is such that the law restrains one of the parties from exercising a legal remedy against another, the running of the statute of limitations applicable to the remedy is postponed, or, if it has commenced to run, is suspended, during the time the restraint incident to the proceedings continues.

3. SAME. A claimant of title to mortgaged premises brought suit in 1891 to quiet title against the mortgagor and to cancel the mortgage, which had not matured. The mortgagor removed the cause to the circuit court of the United States. In 1897 the cause was remanded to the state court, where it was neglected by all parties for ten years. In 1908 a grantee of the mortgagor procured a judgment in his favor, quieting his title against the plaintiff, but no judgment was taken against the mortgagee, who had answered in the suit that the mortgage was a lien on the land in controversy. In 1910 the assignee of the mortgage was granted leave to file a cross-petition, in which foreclosure was prayed for. Held, the remedy was not barred by laches or by the five-year statute of limitations.

Charles Blood Smith, Samuel Barnum, both of Topeka, and F. Dumont Smith, of Hutchinson, for the appellant.

Frank L. Martin, and Van M. Martin, both of Hutchinson, for the appellee.

OPINION

BURCH, J.

The action in its present form is one to foreclose a mortgage of a tract of land which at one time constituted Prospect Park in the city of Hutchinson. The holder of the mortgage was defeated and appeals.

The land was formerly owned by C. C. Hutchinson. He dedicated it to public use for a park by a plat of the city of Hutchinson filed March 15, 1872. In the year 1888 he procured an order from the board of county commissioners purporting to vacate the park, and on August 1, 1888 executed the mortgage in suit, which was in form a trust deed to the Kansas Loan & Trust Company to secure a note payable to the order of E. M. Sheldon. In April, 1891, the city of Hutchinson commenced an action to annul the vacation of the park, to cancel the mortgage, and to quiet the city's title to the land. Hutchinson, Sheldon, and the Kansas Loan & Trust Company were made parties defendant. Sheldon disclaimed, having disposed of the note to another. The Kansas Loan & Trust Company disclaimed for itself, but answered that it had an interest in the premises as trustee under the trust deed, for the holder of the note, and denied generally the allegations of the petition. In July, 1891, Hutchinson procured an order removing the cause to the circuit court of the United States. After consideration of the removal by the circuit court and by the circuit court of appeals the cause was remanded to the district court of Reno county. This was probably in 1897. For the succeeding ten years the action slumbered. In April, 1907, Hutchinson took steps to supply the missing files and procured an order that the transcript prepared for use in the United States court might stand in place of the original papers. In the meantime Hutchinson had conveyed the land to J. G. Wilson, who had sold a one-half interest to E. M. Traylor. On June 17, 1908, Wilson and Traylor were substituted for Hutchinson as parties to the suit and a judgment was rendered in their favor quieting their title against the plaintiff, the city of Hutchinson. No judgment was taken against Sheldon or the Kansas Loan & Trust Company as trustee. In April, 1910, W. B. Lowrance, who had purchased the note and had secured possession of the trust deed, was substituted for Sheldon and the Kansas Loan & Trust Company. In September, 1910, he filed an answer and a cross-petition in which he asked for a foreclosure of the trust deed. By this time Traylor had purchased Wilson's interest in the land. Traylor filed a plea to the jurisdiction, asserting that Sheldon and the Kansas Loan & Trust Company had abandoned the litigation, that the judgment of June, 1908, was a final disposition of the case which excused, discharged and concluded all parties to the suit, that afterwards no action was pending, and that the orders permitting Lowrance to come into the case and to file his cross-petition in foreclosure were unauthorized and void. This plea was overruled, and a demurrer to the cross-petition was also overruled. Traylor then filed an answer which reasserted the facts embraced in the plea to the jurisdiction, and then pleaded laches and the statute of limitations in bar of Lowrance's right to relief. A trial was had, at the conclusion of which the court made findings of the essential facts substantially according to the foregoing statement, and deduced the following conclusion of law:

"I conclude as a matter of law, from the foregoing facts, that the note and mortgage described in finding No. 5 are barred by the Statute of Limitations and by the laches of the holders thereof and that the pendency of this present action has not tolled the run of the Statute of Limitations and that the defendant Lowrance is not entitled to recovery upon his said cause of action or to have the said mortgage foreclosed."

Traylor presents no assignments of error concerning the several matters adjudicated against him, and consequently the two subjects embraced in the trial court's conclusion of law are all that are open to consideration. That of laches is easily disposed of.

The doctrine of laches is equitable in character, and the findings of fact present no subject of equitable consideration in Traylor's favor except lapse of time. Wilson and Traylor purchased with full knowledge of the existence of the mortgage and subject to it. The evidence shows that Wilson paid Hutchinson $ 100 for a quitclaim deed of the park, and that Traylor paid Wilson $ 100 for a quitclaim deed of a one-half interest in it. At that time the city's suit was pending. Conceding that this suit was neglected and dormant, it was sufficiently alive in 1908 for Wilson and Traylor to take judgment in it establishing their title against the city. When this judgment was taken an answer was on file by the Kansas Loan & Trust Company as trustee, asserting an interest in the premises for the protection of the holder of the note secured by the trust deed. Instead of undertaking to secure a final disposition of the case, Wilson and Traylor took judgment against the city alone, and as the court ruled, the case was left open to the substitution of Lowrance in place of the original holders of the paper and proceedings on his part to enforce his lien. The result is that Traylor is in no position to complain of slackness in the conduct of the litigation.

There has been no fraud on the part of any one. There has been no intervention of the rights of innocent third persons, no death or disability of party, no loss of testimony or increased difficulty of defense, no ignorance of facts or rights, no change of conditions or relations upon which to found an estoppel against Lowrance or to build up an equity in favor of Traylor. Lapse of time has had no prejudicial effect upon the rights of the parties, and each one occupies the precise situation and enjoys all the privileges and advantages of his predecessors in interest. Laches, therefore, does not bar foreclosure of the mortgage. (Harris v. Defenbaugh, 82 Kan. 765, 109 P. 681; Dusenbery v. Bidwell, 86 Kan. 666, 121 P. 1098.)

The question whether or not the statute of limitations is a bar to the foreclosure is more difficult of solution.

In April, 1891, the city of Hutchinson commenced its action against the mortgagor and the mortgagee to cancel...