
    Lucretia B. Lenox v. Henry Reed.
    
    July Term, 1873.
    1. Parties: Foreclosure Suit. In a foreclosure suit the person who holds the legal title to the mortgaged premises (whether he is the mortgagor, or the grantee, heir, or devisee of the mortgagor) is always a necessary party. Such person holds the “equity of redemption,” which must he “foreclosed” in order to pass the whole estate, legal and equitable, to the purchaser under the decree for the foreclosure and sale of the mortgaged premises.
    2. Pleading: Presumption from Facts Stated. Where a party brings an action for the ascertainment and determination of an alleged interest in or claim to real property, and from the facts stated in tlie petition it appears that plaintiff’s interest or claim could have been extinguished in and by an action of foreclosure mentioned in such petition, if the plaintiff or her grantors had been made parties defendant in such foreclosure proceeding, and the only averment in said petition respecting the parties defendant in the foreclosure suit is that “the heirs and wife of A. R. F. and others were defendants,” upon demurrer to her petition it will be presumed, against the plaintiff, from the allegations of her petition, that she or her grantors, whichever at the time held the legal title to the land in controversy, were among the defendants in said foreclosure suit, whose names are not given in her said petition, and therefore that she is bound by the proceedings in said suit, and therefore that her petition does not state facts sufficient to constitute a cause of action.
    Error from Doniphan district court.
    Lenox, as plaintiff, brought suit against Henry Reed, John A. Bruce, and Aaron Clem, as defendants. Plaintiff sought to have a certain claim asserted by her “adjudged and decreed to be a lien on”' certain real estate, “and that said land stand charged with the payment of the same, and ber said lien be adjudged to be prior to any-lien which defendants, or either of them, may have thereon; and that, said land be ordered to be sold, and the proceeds of said sale be-applied to payment, first, of the costs of this suit, then to the payment of plaintiff’s demand aforesaid, and the balance, if any, to be disposed of as the court may order; and that the defendants, and each of them, be forever debarred and prohibited from asserting or - setting up any right, title, or claim whatever to said premises.” Reed demurred to the petition, alleging that the petition *did not state facts sufficient to constitute a cause of action. The district court, at the December term, 1872, sustained the demurrer, and Lenox brings the case here on error.
    
      W. W. Guthrie, for plaintiff in error.
    A mortgage remains such after a sheriff’s deed upon foreclosure. The deed conveys only to the extent of the title foreclosed. Previous to the Code of 1868, § 399, a judgment in rem only was necessary; hence after A. B. Foreman had conveyed the legal title, or it had been foreclosed and sold on proceeding against him, his being a defendant in nowise aided or detracted from the foreclosure judgment 'Obtained on the Bnders & Bigelow mortgage. No title was obtained from the sheriff’s deed on this foreclosure ; only the mortgage lien was thereby transferred from Enders & Bigelow to defendant. Brobst v. Brock, 10 Wall. 534; Mayor v. Colgate, 12 N. Y. 140; City of Norwich v. Hubbard, 22 Conn. 587; 22 Johns. 268. Upon the facts of this case, then, the legal title is in plaintiff, and she could maintain an ejectment against defendants, who never have had any title. The superior title, or parent claim, can never be barred in favor of a lien only; yet this is the proposition maintained by defendant Beed. This is not an action to enforce a lien. Plaintiff does not sue to recover judgment on a note, or to foreclose a mortgage. That had been done by her grantors years ago. But'it is an action to adjust and determine a subsisting lien or equity in real estate, by sale of the premises, and apportionment of the proceeds according to priorities, thereby settling all the rights of parties therein in one action, and which can be done in no other action.
    
      Price é Webb, for defendant in error.
    The bare statement of what is alleged in the petition shows sufficiently clear that it does not state facts sufficient to constitute a cause •of action. Stripped of its redundancy, it alleges the following facts, [stating them substantially as in the opinion:] The plaintiff claims that she became the *owner under Stinson & Havens, and that she is now the absolute owner in fee-simple of the ■land; and she claims that she is entitled to be subrogated to the rights of Benson, under the Bector mortgage, and under the judgment under the Bector & Benson foreclosure, (being the same judg- ■ ment under which she derives title, and which judgment or title she /nowhere impeaches;) that this foreclosed the Benson mortgage, (the full force of which, so far as this land is concerned, has been spent ,>in the judgment and sale and deed,) and this judgment (which has ■ been exhausted on the land by becoming the foundation for a deed) ¡still remains a lien on the land; that, as devisee and vendee of Stin- ¡ son & Havens, whose title was acquired under the mortgage, she has ¡•a lien on this land that she oions for what her devisor and grantor ■jpaid for it, and for what they did not pay for it; and, after having shown that the force of the mortgage has been spent on the land, and .that, in virtue of this exhaustion of power, she has become the “fee-simple owner,” she pleads her last legally impossible proposition, that the land still stands charged with the payment of the face of the Rector note and mortgage, and the interest. Craft v. Merrill, 14 N. Y. 457, 461; Weston v. Clark, 37 Mo. 568. The petition does not state a cause of action, and the demurrer was properly sustained.
    
      
       In Kansas every deed of conveyance, whether absolute or conditional upon its face, and whether made to a trustee or not, if made for the purpose of securing a debt, and for that purpose only, is a mortgage, and can be enforced only by an action. When deed of trust a mortgage, McDonald v. Kellogg, 30 Kan. 170; S. C. 2 Pac. Rep. 507; same principle applied, Walkenhorst v. Lewis, 24 Kan. 420; an absolute conveyance, and a separate agreement to reconvey, when a mortgage, McNamara v. Culver, 22 Kan. 661. See, also, Burnett v. Walverton, 24 Kan. 284; Eckert v. McBee, 27 Kan. 232; Overstreet v. Baxter, 30 Kan. 55; S. C. 1 Pac. Rep. 825; McDonald v. Kellogg, 30 Kan. 120; S. C. 2 Pac. Rep. 507; Hiatt v. Parker, 29 Kan. 765.
    
   Valentine, J.

The petition in the court below states substantially the following facts: On April 29, 1858, Blaekstone M. Rector, who was at that time the owner in fee-simple of the N. W. J of section 29, township 4, range 20, in Doniphan county, mortgaged the same to James P. Benson to secure the payment of $280, with interest at the rate of 5 per cent, per month, which mortgage was recorded May 3, 1858, and became due April 29, 1859. Rector afterwards conveyed said land to Brenner, Brenner and wife to Hoffman, and Hoffman to A. R. Foreman. Foreman and wife conveyed said land by deed of trust to Enders & Bigelow to secure the payment of a *debt, which deed of trust was recorded November 30, 1859, and then Foreman and wife deeded the west half of said land to Beauchamp. On September 18, 1862, said Benson foreclosed said mortgage against said Rector, Brenner, Hoffman, A. R. Foreman, and Beauchamp. The judgment in the foreclosure case was for $487.46, and costs. The land was sold under this foreclosure judgment at sheriff’s sale, December 1, 1862, to Stinson & Havens, for $267, and a sheriff’s deed was executed to them and recorded February 16, 1863. Stinson died in 1869, and his interest in the land descended by devise to the plaintiff, Lucretia B. Lenox. Havens conveyed his interest in the land to P. E. Havens and Lucien Scott, trustees, etc., and they to plaintiff, Lenox. A. R. Foreman died, but when is not stated. Aaron Clem claimed under a deed executed by Kate A. Foreman, widow of A. R. Foreman, about December 6, 1866. Enders died, time not stated. Bigelow, surviving partner of Enders & Bigelow, foreclosed said deed of trust in the district court of Doniphan county against “the heirs and wife of said A. R. Foreman and others.” The judgment in this foreclosure case was for $778.58. The S. ½ and N. W. ¼ of N. W. ¼ of said section 29 was sold under this foreclosure judgment, at sheriff’s sale, on June 6, 1868, to Henry Reed, for $270, and a sheriff’s deed was executed to him for the same, and he and David Reed sold the same to John A. Bruce, and executed a bond to him for the same. It is not stated in the petition who is in possession of said land; nor whether any improvements have been made thereon; nor when said deed of trust became due; nor when it was foreclosed; nor who were the “others” besides “the heirs and wife of said A. R. Foreman,” who were parties defendant in the suit to foreclose said deed of trust; nor why only a portion of the land was sold under the deed of trust judgment to Henry Reed; and with reference to several of the deeds, the time when they were executed and recorded is not stated; and the record does not show definitely when this suit was commenced. The object and prayer of the petition below seems *to be to have the court declare that the plaintiff has a prior lien on said land for the amount of said mortgage, with the interest therein expressed, and to have the land sold to satisfy said lien, and to have all the rights, interests, and claims of all the parties in or to said land thereafter barred and foreclosed.

The legal title to the land would now seem to be in the plaintiff, unless the judgment in the action foreclosing said deed of trust has otherwise disposed of the same. Rector was once the absolute owner of the land. The title'passed from him, through Brenner & Hoffman, to A. R. Foreman, and for the west half of the land the title passed from Foreman to Beauchamp, and then by the foreclosure of the mortgage, and the sheriff sale and deed thereunder, the title to the whole of the land passed from Foreman and Beauchamp to Stinson & Havens, and from them, as aforesaid, to the plaintiff. The defendant Clem holds under a deed executed by the widow of A. R. Foreman. But this deed was executed after the title to the land had passed from Foreman to Stinson & Havens, and after Foreman’s death. Hence Clem got no title. The mere execution of said trust deed of course conveyed no title to Enders & Bigelow, (although Foreman at the time he executed the same held the entire title to the land,) for a deed of trust given to secure the payment of money was at that time mei*ely a mortgage, (Laws 1859, p. 571, § 2; Comp. Laws, 722, § 2,) and a mortgage in this state conveys no estate or title to the land, but only creates a lien thereon, (Chick v. Willetts, 2 Kan. *385, *391.) But the defendants Reed and Bruce hold under a foreclosure of said deed of trust, and if the plaintiff or any of her grantors were, while the title to the land was in them, parties to said foreclosure suit, then the proceedings therein are binding and conclusive upon the plaintiff, and Reed got a good title to his land thereunder. But the deed of trust was foreclosed after the title to the land had passed from Foreman and Beauchamp to Stinson & Havens; and unless Stinson & Havens, or their grantors, were parties to the foreclosure suit, the foreclosure was a nullity, and the defendant Reed acquired *no title to said land; and if he had no title, then the defendant Bruce has no interest in the land. It is essential, therefore, to a proper determination of this ease that we inquire as to who were the defendants in said foreclosure case. The petition in this case says that “the heirs and wife of A. R. Foreman and others were defendants” in said foreclosure case. Then who were those “others” mentioned in the petition as defendants, whose names are not given ? A foreclosure, as we have already stated, against the widow and heirs of A. R. Foreman alone would, as a foreclosure, be a nullity; for neither the widow nor the heirs ever had any interest in the land; nor are they the proper parties to sue, even for the debt secured by the deed of trust. Foreman’s interest in the land, as we have already stated, had passed from him before his death. Everything, therefore, would seem to require that we should presume that the plaintiff, or her grantors, were parties to said foreclosure suit. Everything certainly would seem to require us to presume that those “others” mentioned in the plaintiff’s petition as parties to said foreclosure suit were all the persons who would be proper parties to such suit, and most certainly all persons who would be necessary parties thereto. In a foreclosure suit the person who holds the legal title to the property is always a necessary party. In this case Stinson & Havens, or their grantees, held the legal title when said deed of trust was foreclosed, and therefore we must presume that they were parties to the suit; and if they were, then all the proceedings therein are binding and conclusive upon this plaintiff.

Then, what are the right of the parties, respectively, in the present case ? The mortgage given by Beetor to Benson must be considered, with respect to said deed of trust, as a senior mortgage; and the deed of trust given by Foreman to Enders & Bigelow must be considered, under the laws of this state, as a junior mortgage. The senior mortgage was foreclosed without making the holders of the junior mortgage parties to the foreclosure suit. We suppose it will be admitted by the plaintiff that the holders of the junior mortgage might maintain an action to foreclose their mortgage, making all *persons having any interest in the land, or any right under the senior mortgage, parties thereto, and that the plaintiffs in such action would be entitled to a judgment giving to them whatever should be left after doing entire justice and equity to all the •other parties, and such judgment would be binding and conclusive upon all the parties to the suit. Such a foreclosure has already been had in the foreclosure of said deed of trust, and it must be presumed that the plaintiff or her grantors were parties thereto, and therefore she must now look to the judgment in that case to ascertain her rights. If this is not a correct interpretation of her petition, she must amend it. She should have stated originally who these “others” were who were parties defendant in the suit to foreclose said trust deed. This we think disposes of this case, and renders it unnecessary to consider any of the other questions that have been discussed by counsel.

The petition in the court below was demurred to by the defendant Beed on the ground that it did not state faets enough to constitute a cause of action. We think said petition is defective because it presumptively shows that the plaintiff’s rights have been determined in another action. It must be remembered that this is not an action for the recovery of real property, nor to quiet title or possession to real property, nor to remove a cloud from the plaintiff’s title, nor to foreclose a mortgage; but (as admitted by plaintiff’s counsel in their brief) it is an action to determine the priority of certain liens growing out of mortgages or mortgage foreclosures, and asking to have the land sold to satisfy said liens in accordance with their priorities. Viewing the case in this light, no cause of action is stated in said petition against Reed, and possibly none is stated against either of the other defendants, for it must be presumed that everything that the plaintiff now asks has already been litigated in another action, and finally determined. The order of the court below sustaining said demurrer is affirmed.

Kingman, C. J., concurring; Brewer, J., not sitting in the case.  