The J. B. Watkins Land Mortgage Company v. Mullen

• Decision Date: 01 October 1898
• Docket Number: 240. [*]
• Citation: 8 Kan.App. 705,54 P. 921
• Parties: THE J. B. WATKINS LAND MORTGAGE COMPANY v. M. A. MULLEN
• Court: Kansas Court of Appeals

54 P. 921

8 Kan.App. 705

THE J. B. WATKINS LAND MORTGAGE COMPANY v. M. A. MULLEN

No. 240. ^[*]

Court of Appeals of Kansas, Southern Department

October 1, 1898

Opinion Filed October 20, 1898.

Error from Rush district court; J. E. ANDREWS, judge. Affirmed.

Judgment affirmed.

Bishop & Mitchell, and J. H. Mitchell, for plaintiff in error.

H. E Winterburn, and J. W. McCormick, for defendant in error.

OPINION

SCHOONOVER, J.:

Judgment was rendered against the defendants, including M. A. Mullen and the land ordered sold without appraisement. An order of sale was issued and the land sold to J. B. Watkins for $ 500. A motion was made to confirm the sale. On the 11th day of January, 1894, M. A. Mullen filed objections to the confirmation, and afterward was permitted to file an answer and cross-petition to the petition of plaintiff. She alleged in substance: That the title of the plaintiff to the land conveyed in the mortgage sought to be foreclosed was void, because that title was derived through conveyances from a certain administrator's deed made by one Thomas Kennedy, as administrator of the estate of Bridget O'Connor, deceased; that the conveyance made by said Thomas Kennedy as administrator was void, because the land so sold was the homestead of Bridget O'Connor and was sold by said administrator to pay debts contracted prior to the issue of the patent, and that such sale for such purpose was void under the provision of section 2296 of the Revised Statutes of the United States (1878), which is as follows:

"No land required [acquired?] under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."

She further alleged in her answer that M. A. Mullen had begun on June 9, 1887, an action in the district court of Rush county, Kansas, against J. S. Smith, S. J. Collins, W. F. Gilmore, A. H. Teeter and William Neild to set aside all of said conveyances, which action was numbered 447 of the records of the district court of Rush county. She did not allege that the defendant William Neild, who was the original payee of the mortgage sued on by the plaintiff in this action, was ever served personally with summons or that he ever answered in said action.

To this answer and cross-petition plaintiff filed a reply. The J. B. Watkins Land Mortgage Company was substituted as plaintiff instead of Henry Dickinson, the cause was tried to the court on the issue joined without a jury, and judgment rendered for the defendant M. A. Mullen. The findings and judgment are as follows:

"That the J. B. Watkins Land Mortgage Company, a corporation under the laws of the state of Colorado, by stipulation, is substituted party plaintiff in place of Henry Dickinson, and is the real party plaintiff in interest in this case."

"That the said land described and set out in plaintiff's petition, to wit: The northwest quarter of section number 30 in township number 19 south, of range number 19 west of the sixth principal meridian, in Rush county, Kansas, was patented by the United States of America to the said Bridget O'Connor, as a homestead, under the homestead laws of the United States, and was so owned and held by her at the time of her death; that Mary Ann Mullen was the sole and surviving heir of the said Bridget O'Connor, deceased, and is the absolute owner of the said real estate; that the said real estate was sold for the payment of debts of the said Bridget O'Connor contracted and existing prior to the time that the said patent to said land was issued as aforesaid, by Thomas Kennedy, as administrator of the estate of the said Bridget O'Connor, deceased; and that said probate court had no jurisdiction of the said estate, or to appoint an administrator for the said estate, and that the said administrator had no right or power to sell the said land, and that the title obtained by S. J. Collins, W. F. Gilmore, A. H. Teeter, Mary L. Teeter, I. S. Smith and William Neild from said sale of the said administrator is null and void; and that the said mortgage sought to be foreclosed in this action is void, and conveys no right, title or interest in or to the said land, and that the plaintiff, under the said mortgage, has no right, title or interest in or to the said land; and that the allegations of the answer in cross-petition of the said Mary Ann Mullen are true.

"It is therefore adjudged, ordered and decreed that the said Mary Ann Mullen is the absolute owner of the said real estate, and that the said administrator's sale of the said real estate by the said Thomas Kennedy is void, and the same is set aside and held for naught, and that the said mortgage sought to be foreclosed in this action is null and void, and passes no title, right or interest in or to the said real estate, and is hereby set aside, and decreed no lien on the said real estate.

"It is further adjudged, ordered and decreed that the right and title of the said Mary Ann Mullen in and to the said real estate be quieted in...