McKinley-Lanning Loan & Trust Co. v. Bassett

46 P. 999, 5 Kan. App. 469, 1896 Kan. App. LEXIS 311

• Court: Court of Appeals of Kansas
• Decided: December 4, 1896
• Docket: No. 90
• Status: Published

Opinion

Gilkeson, P. J.

The plaintiff in error contends that the petition does not state facts sufficient to constitute a cause of action. There are two grounds for injunction alleged. First. The release by the Trust Company, as plaintiff in the foreclosure action, of its right to a personal judgment against Jonathan Sarver. Second. The release of a portion of the property of said Sarver, after judgment in foreclosure. We will treat them in their order; and, first, as to the release by the Trust Company of its right to a personal judgment against Sarver.

The petition shows that this question was fully decided in the foreclosure suit. That decree was not void. The court had jurisdiction of the subject-matter and of the persons, and the record shows that it was in accord with the issues in that case. Neither was it erroneous ; but, if it was, Bassett had his adequate remedy at law to reverse it by proceedings in error; and, failing to do that, he cannot attack the decree collaterally, or in a separate action.

The McKinley-Lanning Loan and Trust Company was not obliged to take a personal judgment against Sarver. A mortgagee is not compelled to accept the grantee who assumes his mortgage ; he can stand on the mortgage contract.

“Where the purchaser of land agrees to pay the debt of his grantors as a part of the purchase price thereof, but their creditor does not accept and adopt the contract; on the contrary he asks, in an action to foreclose the mortgage on the land sold; a personal judgment against the grantors and a decree of foreclosure and order of sale, and simply asks that any right of the vendee may be adjudged inferior and subject to his mortgage lien, held, that the vendee is not the debtor of the owner of the note and mortgage.” Searing v. Benton, 41 Kan. 758.

Nor do we think that the question of principal and surety was involved under the issues of the foreclosure action, or under the law, so far as plaintiff in error was concerned. Stove Works v. Caswell, 48 Kan. 689.

This brings us to the other alleged ground for the injunction — the release of a portion of Sarver’s property after judgment. The petition does not state that the released property was any part "of the land in controversy in the foreclosure action, or that it was property ordered by the court to be sold. The evidence shows that four hundred bushels of wheat were raised upon the Sarver tract, but not that Sarver owned it, or that it was ever in the possession of the Trust Company or of the receiver. We are at a loss to understand how it could release that which it never had. M. C. Beville owned the wheat. The Company might have litigated his right thereto, but was not compelled to do so. That the Company had the receiver discharged is not shown by the record. On the contrary, the only showing on this proposition is that Sarver had'the receiver discharged. The court found, as its reason for discharging him, that the “ order appointing him was imprudently, erroneously and unlawfully made.”

We think the objection of the defendant to the introduction of testimony should have been sustained.

The judgment in this case will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed.