Kaeser v. Manderschied

Albert, J.

On the 3d day of March, 1920, the Manderschieds executed to appellee a note for $17,000, secured by real estate mortgage on certain property. On the 19th of March, 1925, suit was commenced to foreclose this mortoa8'e, naming certain lien holders and B. F. Barthell as defendants. Plaintiff’s petition is in the usual form for the foreclosure of a mortgage. It alleges the execution and delivery of the mortgage and note, the due recording of the mortgage, that the mortgage and note are still plaintiff’s property, that the same is past.due, and that defendants have, or claim to have, some lien or interest in or to said real estate; but plaintiff alleges that such lien and interest, if any, are junior and inferior to plaintiff’s mortgage, and that there is now due $20,158.12, with interest from March 1, 1925. Various payments of interest were made.

The Manderschieds filed a- separate duly verified answer, as follows:

“1. That since the execution of the note and mortgage set out in plaintiff’s'petition * * * they have united in"a conveyance of said mortgaged premises to one B. F. Barthell, who * * * is not a party to the litigation. .- .

‘ ‘ 2. That these defendants, who are husband and wife, are now in the use, possession, and occupancy of said premises, ás tenants of said B. F. Barthell, under lease from said B. F. Barthell for a term of two years from March 1, 1925, and as such tenants are entitled, under said lease, to the use, possession, occupancy, control, and management of said real estate for said term of two years, or at least so long as said B; F. Barthell shall remain the owner of said premises, entitled to the possession thereof, as against the plaintiff, the lien of plaintiff’s mortgage upon said premises, — and these defendants have, obligated themselves to pay rent upon said premises to said B. F. Barthell for said two-year term.

“3. Defendants admit execution of a certain $17,000 note to plaintiff and' execution of a real estafe mortgage to secure same, and admit and allege that certain payments and indorsements have been made by them upon the indebtedness represented by said note and secured by said mortgage; and as to all other allegations to.plaintiff’s petition have no knowledge or information sufficient to form a belief.”

This answer was met by a motion to strike^ on the following grounds: -.

■ “That the whole of said answer is sham and irrelevant pleadings, and is-made wholly for the purpose of delaying the adjudication of this case.”

• ■ This motion was sustained by the court, and from this ruling the appeal is -taken.

The appellee justifies the ruling of the court on Section 11197, Code of 1924, reading as follows:

“Sham and irrelevant answers and defenses, and irrelevant and redundant matter in all pleadings, may be stricken out on motion,, upon such terms as the court may, in its discretion, impose.” ■ .

• ■ This statute.is clear, and- needs no interpretation, and the question before us is a, question of .the application of this statute. The petition of appellee, among other things, alleges that whatever rights any of the defendants have or claim to have are junior and inferior' to plaintiff’s mortgage;. This answer of the Manderschieds, above set out, amounts, in substance, to an allegation of fact that the makers of the mortgage had conveyed the property to Barthell, taking a lease back for two years, and were in possession of the property thereunder at the time suit for foreclosure was instituted. This, of course, would not be a defense against the foreclosure, and whatever rights they had under their lease, if any, could be adjudicated in this action. Had Barthell not been made a party to the action, — and in one sense he was not, because notice had not beein served upon him at the time in controversy, — whatever the rights of the Manderschieds were in such case (they being parties to the action) could have been adjudicated • in this action. Of course, so long as notice was not served upon Barthell, his rights, whatever they may have been, would not be affected. The Manderschieds were claiming certain rights under the lease with Barthell which they were bound to lose when Barthell lost his rights in this property, be'cause they were claiming through him. Had they wished to protect the rights'they claimed under this lease, as against Barthell, there was nothing to prevent them from having Barthell brought into the action, to the end that whatever rights they had should be protected; but that would'be a question between them and Barthell, and whatever the result, it would not amount to a defense to this mortgage foreclosure, the mortgage having been duly recorded long before Barthell acquired the title to the property. This being true, -this part of the'defense, designated as “No. 2” in the answer, was wholly irrelevant to the pleading, and , could, under proper motion, have been stricken.

When we take into consideration the allegations of the petition and the force and effect of the admissions made in the third division of the answer, the special denial made under Subdivision ■ 3, Section 11114, Code- of 1924, is inoperative and of no effect; as, under the admissions made, there is nothing left to form the issue. It necessarily follows, therefore, that the ruling of the district court was right in striking this pleading.&emdash;Affirmed.

De G-raef, C. J., and Evans and Mording, JJ., concur.