Bear v. Cutler

Citations

• 86 Kan. 66
• 119 P. 713

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. 'Ejectment — Purchaser at Foreclosure Sale — Title. In 188? the owner of a vacant and unoccupied quarter section of land mortgaged it and shortly thereafter conveyed to a grantor of the defendant. In 1891 the land was sold under foreclosure to a grantor of the plaintiff, neither the mortgagor nor the owner being a party to the foreclosure. The plaintiff and his grantors purchased in good faith for a valuable consideration, and paid all the taxes after the foreclosure. The plaintiff had a portion of the land broken and a crop was put in, a portion of which he was to receive, but the crop failed. He permitted another portion of the land to be fenced and used for a pasture, and while the owner of the fence was still using the pasture with consent of the plaintiff the defendant went upon the land, plowed and planted the broken portion and ran a few furrows around the quarter section, the object being to gain possession. No payment or offer to pay any part of the mortgage debt was made. Held, that the plaintiff could maintain ejectment.</p> <p>2. - Reply — New Issues — Not Prejudicial. In an action in ejectment the plaintiff, over objection, was permitted to file a reply setting up a cause of action to quiet title. Held, that such amendment was improperly permitted and substantially changed the claim of plaintiff, but as the matters in controversy were fully litigated and the judgment rendered ignored such amended reply the defendant was not substantially prejudiced thereby.</p>