Stough v. Badger Lumber Co.

Citations

• 70 Kan. 713
• 79 P. 737
• 1905 Kan. LEXIS 35

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage — Parties in Foreclosure Suit. The owner of the legal estate is an essential party to an effective foreclosure of real property, and if a mortgagor conveys the mortgaged property before the foreclosure proceedings are begun and the conveyance is recorded, or the grantee is in open, actual and exclusive possession, the foreclosure as to such grantee is wholly inoperative.</p> <p>2. -Effect of Defect of Parties. If a mortgage is foreclosed without the presence of the grantee of the mortgagor and there is a sale in pursuance of the decree, the purchaser at the sale will acquire nothing higher than an assignment of the liens sought to be foreclosed and the right to foreclose such liens in another proceeding:</p> <p>3. -Proof in a Second Suit. In a second foreclosure brought against the grantee of the mortgagor, not made a party in the first, it devolves upon the plaintiff to prove the existence and validity of the liens sought to be foreclosed, and the findings and judgment in the first proceeding are not competent evidence for that purpose.</p> <p>4. -Right of Grantee of Mortgagor to Defend. In such-second proceeding the grantee of the mortgagor is entitled to defend against the liens, and to prove any facts which will prevent the enforcement of the liens against his property.</p> <p>5. -Exception in Deed Does Not Estop the Grantee. A recital in the warranty deed of the grantee, that the premises conveyed are free and clear of all encumbrances, except certain liens, naming them, is only a limitation of the covenant against encumbrances, and is not such a recognition of the liens as will estop the grantee from contesting their enforcement against the property conveyed.</p>