Ray v. National Bank , 9 Kan. App. 13 ( 1899 )

The opinion of the court was delivered by

Mahan, P. J.:

The record does not sustain either the first or third assignment of error. The plaintiff in error w'as ultimately permitted to introduce all the evidence which is the "basis of the first assignment, but offered none under the third assignment. Under the second assignment of error, it is contended by the plaintiff in error that the transfer of the insurance policy, taken out and held by Ray, to the defendant in error, was to be taken as an absolute payment of the amount thereof, namely, $800. It was contended on behalf of the defendant in error that the transfer of the policy was as collateral security to the judgment, and was not as payment at the face value of the policy. Upon the evidence the court found for the defendant in error,. and so finding, it was proper to allow the necessary expenses of collecting the policy, including a reasonable attorney fee, and in this the evidence sustains the action of the court. Under the fourth assignment, it is contended that, there having been a judgment and decree of foreclosure upon the note and mortgage, the mortgage was merged in the judgment, and being so merged no longer afforded the defendant in error any ground for relief; that he could not predicate upon any of the conditions of the mortgage any act that might have been justified thereunder prior to the decree. In support of this contention we are cited to the case of McCrossen v. Harris, 35 Kan. 178, 10 Pac. 583. The rule announced in that case was embodied in the syllabus, as follows :

“Where a mortgage of real estate is merged into a judgment, which includes all the taxes due upon the land at the date of its rendition, the payment by the judgment creditor of taxes accruing on the premises after the judgment will not constitute a separate and independent lien on the land, which can be enforced by action, after the judgment debtor has satisfied the judgment, interest, and costs.”

In the course of the opinion the court said:

• “ Under some circumstances perhaps a party might pay the taxes for the protection of his lien, and for such payment equity might give him a lien in connection with the judgment; but such a case is not presented. All of the taxes prior to 1883 were included in the judgment.- For the protection of his judgment lien, it was not necessary to pay the taxes of 1883.”

The court further said in the opinion that at the time the plaintiff paid the taxes the mortgage had been extinguished by being merged into the judgment ; therefore the taxes were not a lien in connection with the mortgage. At the conclusion of the opinion the court said:

“ It seems very unjust that the plaintiff should pay these' taxes and not be able to recover the amount thereof. But as the payment must be regarded as voluntary the law does not give, a remedy.”

It will be observed that this was not a supplementary proceeding in the case in which the decree was rendered, .in the nature of a bill of review under the old chancery practice, but an independent action to recover the money paid after the decree, and begun after the satisfaction of the judgment. That the defendant in error had a right before the decree of foreclosure to redeem the land and charge the same, either under the statute or under the terms of the mortgage, to the plaintiff in error there is no doubt. Nor is there any doubt that a court of equity has a right, before the final determination of the suit, to make additional orders or decrees based upon the rights of the parties respecting the matter in litigation. It may even bring in additional parties, whose presence may bé necessary for such purpose, so that the relief asked by the supplementary bill or petition is connected with and based upon the original cause of action or subject-matter of the suit. Under the evidence it was necessary, and the court so found, in effect, that this redemption should be made, to preserve to the defendant in error any benefits under the decree.

Supplemental bills in the nature of bills of review, based upon matters arising under the principal decree, and before the final determination of the case and the enrolment of the decree, were of frequent occurrence under the old chancery system, and that the right still exists there can be no doubt. Although by the terms of the code all distinctions between law and equity have been abolished, this did not abolish the right — the jurisdiction — of the court to grant such relief upon proper occasion, and it seems to us clear that this was such an occasion.

The judgment is affirmed.