
    C. H. Armstead v. George B. Neptune et al.
    
    No. 8381.
    
      Answer — Demurred—Subrogation. It is improper to strike out an answer and cross-petition because the facts stated therein are insufficient to establish a cause for relief, the proper practice in such case being to demur; but the facts averred were sufficient to entitle the party to relief on the principle of subrogation, and the pleading would not have been demurrable.
    
      Error from Finney District Court.
    
    The opinion herein, filed May 9, 1896, states the nature of the action and the material facts.
    
      A. J. Hoskinson, for plaintiff in error.
    
      W. A. Frush, for defendants in error.
   The opinion of the court was delivered by

Martin, O. J.

: Neptune, on September 27, 1890, commenced his action against Franklin Cartwright and wife to forclose a bond for a deed on a quarter-section of land. He made. Armstead and Frush. parties defendant, as claiming some interest. The Cartwrights were in default. Frush filed an answer and cross-petition, alleging in substance that on September 23, 1887, the Cartwrights being the owners of said land, free and clear of all incumbrances except an equitable lien in his favor, he commenced an action in said district court against the Cartwrights claiming such equitable lien, and upon personal-service and^ appearance of the Cartwrights he afterward, on July 24,1890, obtained a judgment against Franklin Cartwright for $2,117. 51, which was decreed to be a first lien on said real property, and it was still in force, and that the claims of the other parties to the action were inferior to his lien.

Armstead filed an answer and cross-petition to the answer of Frush, stating that, in the spring of 1885, Franklin Cartwright and W. A. Frush entered into a copartnership for the purpose of buying and selling real estate under an agreement that such real estate should be held in the name of Cartwright; that on July 14, 1886, during the existence of said partnership, Cartwright purchased the quarter section of land for $2,300, and took the legal title thereto in his own name, with full power and authority to sell, incumber and convey the same as his own ; that afterward, on August 16, 1886, Cartwright and wife mortgaged the land to J. F. Tallant to secure a note for $1,500, due five years after date, with interest at 12 per cent, per annum, which note was given for a loan of that amount; that the same became and was from the date thereof a valid and existing lien on said real estate against said W. A. Frush, as to any interest he had in said real property; that said mortgage was duly recorded, and it continued to be a valid and existing lien until December 3, 1887, when (said partnership still existing) Cartwright borrowed of him (Armstead) the sum of $2,200, and executed his promissory note to him (Armstead) for that amount, due in two years, with interest, and, for the purpose of securing the same, Cartwright and wife executed their mortgage upon said land to him (Armstead), and out of the money so borrowed the sum of $B,940 was used by Cartwright in paying off and satisfying the mortgage held by Tallant, and the balarj/ce was used by Cartwright in paying taxes upon said real estate, and in erecting valuable and lasting improvements thereon; that Frush received the full benefit of said loan and is estopped from denying the validity of said mortgage ; and, further, that on December 13, 1889, he (Armstead) commenced an action in said court against the Cartwrights and George B. Neptune to recover judgment on said note of $2,200, and to foreclose said mortgage, and on October 6, 1890, he recovered a judgment against Franklin Cartwright for $2,386.30 and a decree of foreclosure of said mortgage, and said judgment and decree still remained in, force, unreversed and unsatisfied in any part; and, further, at the time he loaned said $2,200 to Cartwright, and at the time he brought the foreclosure suit, he had no knowledge that Frush claimed an interest in said land.

Frush moved the court to strike out the answer and cross-petition of Armstead, and on May 28, 1891, the motion was sustained, and, Armstead declining further to plead, judgment was rendered against him for costs. The motion of Frush seems to have proceeded upon the theory that the answer and cross-petition of Arm-stead did not state facts sufficient to establish any cause for relief. It is never proper to strike out an answer and cross-petition because of its insufficiency alone. In sucli case it should be attacked by demurrer or answer. If, however, we should treat the motion as a demurrer, still it ought not to have been sustained. Frush cites section 81, civil code (¶ 4164, Gen. Stat. 1889), and says that the mortgage to Arm-stead, having been executed December 3, 1887, was affected by the Us pendens of his suit, which was commenced September 23, 1887. The position of Frush would be correct, except for the doctrine of subrogation.' Under the allegations made by Armstead, Tallant held a mortgage for $1,500 and interest, which was prior to the lien of Frush, and this was satisfied out of the money loaned by Armstead to Cartwright. Perhaps the answer and cross-petition of Armstead should have directly averred that the money was borrowed and used by Cartwright for the purpose of satisfying the Tallant mortgage and paying the taxes past due on the land, but we think the averments of the pleading are substantially of this effect. The doctrine of subrogation could apply only to the prior mortgage and tax liens discharged out of the proceeds of the Armstead mortgage, and not to the improvements to be made afterward, but this is only a question of amount, and does not affect the right of Armstead to relief as to the prior liens discharged out of the proceeds of the mortgage made to him. Arm-stead does not appear to have been a mere volunteer or intermeddler in discharging the prior liens, but he did so at the instance of Cartwright, with the agreement that he should have a mortgage upon the same real estate for $2,200, which sum, although in excess of the liens discharged, would yet be good up to their amount and within the limit of $2,200. This court has been liberal in the application of the doctrine of subrogation, to such cases. (Crippen v. Chappel, 35 Kan. 495, 499, 500, and authorities cited ; Yaple v. Stephens, 36 id. 680 ; Bowling v. Garrett, 49 id. 521, 522.)

Some claim is made by Frush that the answer of Armstead was a sham, but the record contains no evidence, and the case was disposed of upon the pleadings and the motion, and so we are not dealing yrith any disputed question of fact.

The judgment will be reversed, and the c^tse remanded for further proceedings.

All the Justices concurring.  