Wolf v. Wolf

• Court: Kansas Supreme Court
• Writing for the Court: BURCH, J.:
• Citation: Wolf v. Wolf, 88 Kan. 205, 128 P. 374 (Kan. 1912)
• Decision Date: 07 December 1912
• Docket Number: 16,378
• Parties: CATHERINE WOLF et al., Appellees, v. CHARLES M. WOLF et al., Appellees, and SARAH G. SHATTUCK, Appellant

128 P. 374

88 Kan. 205

CATHERINE WOLF et al., Appellees, v. CHARLES M. WOLF et al., Appellees, and SARAH G. SHATTUCK, Appellant

No. 16,378

Supreme Court of Kansas

December 7, 1912

Decided July, 1912.

Appeal from Sedgwick district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MORTGAGE FORECLOSURE Pleadings -- Tax Deeds -- Limitations. At the commencement of suit to foreclose a real-estate mortgage the appellant was joined as a defendant. The allegations of the petition were that she had or claimed to have some interest in or lien upon the premises adverse to the lien of the mortgage, but that any interest she might have was junior, subordinate and inferior to the mortgage lien. The prayer was the usual one in such cases. Afterwards the appellant took out tax deeds of the property, which were five years old when pleaded in her answer. Held, the petition was a continuing challenge of the appellant's claims upon the property and that the tax deeds were not protected by the statute of limitations.

2. CONCLUSIONS OF LAW--Statement of Fact. Under the circumstances stated in the opinion a conclusion of law pleaded in the reply will be treated in a review of the case on appeal as a statement of fact.

3. TAX REDEMPTION NOTICE--Invalid Tax Deeds. A tax redemption notice relating to several lots of the same owner which states that unless all such lots be redeemed within the proper period each lot will be conveyed to the purchaser is illegal and invalidates tax deeds subsequently issued pursuant to it.

S. W Shattuck, jr., of Wichita, for the appellant.

OPINION

BURCH, J.:

The action in the district court was brought to foreclose a real-estate mortgage given by the defendants, Charles M. Wolf and Mary Wolf, on the lots in controversy. The mortgage ran to "S. W. Shattuck, Guardian," and the original plaintiff in the action was so designated. The mortgage and the note it secured in fact belonged to the estate of certain minors, who, after becoming of age, asked to be substituted as plaintiffs. Shattuck undertook to claim the note and mortgage as his own, but the substitution was allowed by the district court and the order of substitution was affirmed by this court. (Shattuck v. Wolf, 72 Kan. 366, 83 P. 1093.) At the commencement of the suit the appellant, Sarah G. Shattuck, was made a defendant. The allegations of the petition were that she had or claimed to have some interest in or lien upon the premises described adverse to the lien of the mortgage, but that any interest she might claim to have was junior, subordinate and inferior to the mortgage lien. The prayer was that all the right, title, interest, estate, lien and equity of redemption which the defendants might have or claim to have should be forever barred, foreclosed and cut off. The appellant answered, setting up several tax deeds of the property. All these deeds had been issued after the suit was commenced and some of them were five years old when pleaded. The reply asserted the invalidity of the deeds on various grounds, and evidence showing irregularities in the proceedings on which they were based was introduced. The court stated findings of fact and conclusions of law favorable to the plaintiffs, and judgment was rendered foreclosing their mortgage as a lien.

The appellant argues that no action was commenced to defeat the tax deeds until the reply was filed; that an affirmative attack on the tax deeds could not be made by way of reply, but that the petition should have been amended or supplemented; that, as a result, all the tax deeds should have been sustained, but that in any event those which were five years old and regular in form could not be impeached.

In this state adverse titles may be litigated in an action to foreclose a mortgage. The petition charged that the appellant had no title to the premises superior to the mortgage, the purpose being to establish full title in the mortgagor so that the foreclosure sale would pass such title to the purchaser. If the appellant had made default she would have been concluded by the judgment barring her from making any claim to the property. (Hentig v. Redden, 46 Kan. 231, 26 P. 701.) It has been so held in a foreclosure case in which a defendant failed to set up a tax lien acquired after the suit was commenced. (Adair et al. v. Mergentheim, 114 Ind. 303, 16 N.E. 603.) Such a judgment rests upon the allegations of the petition, which are taken as true unless the title acquired subsequent to the commencement of the action be pleaded. The petition is a continuing challenge of all rights, adverse to the mortgage, which the judgment would cut off, if not pleaded and proved. Therefore, the plaintiffs were not called upon to supplement their pleading each time the appellant took out a tax deed. The petition on file stood as a declaration of the subordination of each one, as it was placed of record, to the mortgage, and the reply merely particularized the defects which made each one subordinate to the mortgage.

Some complaint is made because the court allowed the reply to be amended and finally...