The Home State Bank v. Frank

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.
• Citation: The Home State Bank v. Frank, 282 P. 712, 129 Kan. 311 (Kan. 1929)
• Decision Date: 07 December 1929
• Docket Number: 28,939. 29,009
• Parties: THE HOME STATE BANK, Plaintiff, v. GEORGE A. FRANK et al., Defendants; FORREST B. ANDERSON, Appellant; J. H. BRADY, Appellee. RICHARD MASON et al., Plaintiffs, v. GEORGIA JACOBS et al., Defendants; FORREST B. ANDERSON, Appellant; J. H. BRADY, Appellee

282 P. 712

129 Kan. 311

THE HOME STATE BANK, Plaintiff, v. GEORGE A. FRANK et al., Defendants;

FORREST B. ANDERSON, Appellant; J. H. BRADY, Appellee. RICHARD MASON et al., Plaintiffs, v. GEORGIA JACOBS et al., Defendants;

FORREST B. ANDERSON, Appellant; J. H. BRADY, Appellee

No. 28,939. No. 29,009

Supreme Court of Kansas

December 7, 1929

Decided July, 1929.

Appeals from Wyandotte district court, divisions Nos. 1 and 2; EDWARD L. FISCHER and FRANK D. HUTCHINGS, judges.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MORTGAGES--Redemption--Rights of Prior Purchaser at Execution Sale. When one who purchases real estate encumbered by mortgages in process of foreclosure at an execution sale, which had been confirmed by the court, and at the end of the fixed redemption period a sheriff's deed is executed to the purchaser, the right of redemption in the foreclosure case passes absolutely to such purchaser as fully as if the owner had conveyed the real estate to him by a valid deed.

2. COURTS--Division of Districts--Right of Litigants to Choose Judge. There was no error in denying appellant's application that a certain motion be heard in another division of the district court.

3. MORTGAGES--Trial Generally. Other objections are held to be without merit.

Forrest B. Anderson, of Kansas City, pro se.

T. F. Railsback and J. H. Brady, both of Kansas City, for the appellee.

OPINION

JOHNSTON, C. J.

The two above-entitled actions were, on application, consolidated and heard together on this appeal. One action brought by the Home State Bank against the defendants was a mortgage foreclosure proceeding in which two mortgages on property purchased from the mortgagors by Forrest B. Anderson, with an assumption of the mortgage debt, were foreclosed and the priority of liens adjudged. The times for redemption from sales under the decree were fixed. J. H. Brady was made defendant in the action on the ground that he claimed an interest in the mortgaged property. His interest arose out of proceedings in another action, spoken of as the Jacobs case, in which a judgment against Forrest B. Anderson was rendered for $ 529.50, together with the costs assessed, and this judgment became a junior lien against the real estate involved in the foreclosure proceeding. An appeal from that judgment was later dismissed and the judgment became an affirmed finality. Upon that judgment and under an execution the real estate was sold to J. H. Brady for $ 1,060 on February 1, 1927. A certificate of purchase was issued to him in which it was recited that Anderson had been given eighteen months to redeem from the sale, but no redemption was had within the period and accordingly a deed to the property was duly executed and delivered to Brady on September 26, 1928. Anderson being in possession of the property, a writ of assistance was applied for and granted January 23, 1929. A motion to vacate the writ was overruled and this ruling is assigned as error, as well as one refusing Anderson's motion to have the case transferred to another division of the district court.

In the foreclosure action Anderson contends that there was error in the ruling of the court to the effect that J. H. Brady, who had purchased the property at the execution sale, based upon the judgment in the Jacobs case, was entitled after the period of redemption had expired, to be recognized and treated as owner in the foreclosure proceeding with the right of redemption derived from the sale and conveyance. Brady, as we have seen, was made a party in that proceeding, and his interest in the property or junior lien thereon was presumably shown. It is recited that the court, on the evidence offered and arguments produced, made findings of fact and rendered judgment, and among other things determined that Brady had a lien subordinate to the mortgage liens, and with the right to redeem as...