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under the law no right to encumber the estate by borrowing money for the purpose of paying out on this land.

The defendant claims, however, that there was a defect of parties. This was not raised by demurrer (it could not have been, to the petition filed in this case), nor by the answer. It was sought, however, on the trial, to prove that Sophia C. H. Martin at the date of her death was a married woman, and therefore that her husband would be one of her heirs, and the failure to join him as a party plaintiff in this action would be such a defect of parties that they could not recover. The defendant alleges that the refusal of the court to allow them to prove that Mrs. Martin was a married woman at the time of her death was error. We think that the question of defect of parties cannot be raised in the introduction of evidence. Our statute provides (Civ. Code, secs. 89, 91) that if a defect of parties plaintiff or defendant does not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken either by demurrer or by answer, the defendant shall be deemed to have waived the same. There was nothing in the answer to indicate there was a defect of parties: Kansas Pac. R'y Co. v. Nichols, 9 Kan. 235; 12 Am. Rep. 494; Parker v. Wiggins, 10 Kan. 420; Humphreys v. Keith, 11 Kan. 108; Seip v. Tilghman, 23 Kan. 289; Jeffers v. Forbes, 28 Kan. 174; Thomas v. Reynolds, 29 Kan. 304. In any event these parties were tenants in common: Markoe v. Wakeman, 107 Ill. 251; Tarrant v. Swain, 15 Kan. 146; Freeman on Cotenancy and Partition, secs. 86, 92. As tenants in common they had the right to bring this action against one who had no title, even though the other tenants in common were not joined in the action: Robinson v. Roberts, 31 Conn. 145; Sherin v. Larson, 28 Minn. 523; Weese v. Barker, 7 Col. 178; Sharon v. Davidson, 4 Nev. 419; Perkins v. Blood, 36 Vt. 273; Hart v. Robertson, 21 Cal. 346; Treat v. Reilly, 35 Cal. 131.

We recommend that the judgment be affirmed.

By the COURT. It is so ordered.

FOR A DISCUSSION OF THE LAW RELATIVE TO LAND PATENTS issued to a deceased person or to the heirs of a decedent, see note to Cobb v. Stewart, 83 Am. Dec. 467-470. The sale of a decedent's land under an order of the probate court transfers no title when he, at the time of his death, had a mere pre-emption claim to the land, notwithstanding the fact that the land is afterwards entered in the name of his heirs: Burns v. Hamilton, 33 Ala. 210; 70 Am. Dec. 570. A patent issued by the United States to a de

ceased person inures to the benefit of his heirs: McInnis v. Pickett, 65 Miss. 354.

PARTIES. If a defendant, by his answer or demurrer to plaintiff's peti tion, does not present to the trial court the legal incapacity of the plaintiff to sue, such defect is waived by him: Meyer v. Lane, 40 Kan. 491. Defect of parties shown by the petition and not demurred to is waived under the Kentucky code: Metcalfe v. Brand, 86 Ky. 331; 9 Am. St. Rep. 282.

FRICK COMPANY V. KETELS.

OF MORTGAGOR.

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142 KANSAS, 527.]

HOMESTEADS-MORTGAGE ON HOMESTEAD AND OTHER PROPERTY. RIGHT Where a mortgage upon a homestead and other real estate is being foreclosed, the mortgagor has the right, as against the mortgagee, and all other creditors and lien-holders whose rights are not prior or superior to those of the mortgagee, to require that, before the homstead shall be resorted to for the purpose of satisfying the mortgage, all the other property shall be first exhausted.

J. W. Green, for the plaintiff in error.

V. H. Harris, and Rossington, Smith, and Dallas, for the defendants in error.

VALENTINE, J. The Frick Company, a corporation, holding a mortgage upon all the real estate of Knut Ketels, including his homestead occupied by himself and wife and family, and the company prosecuting an action in the district court of Douglas County to foreclose such mortgage as against all such real estate, attempted, without the consent and against the will of the mortgagors, Ketels and wife, to release the mortgage of record as to that portion of the real estate not included in the homestead, and moved the court to dismiss its foreclosure action as to that portion of the real estate, so that it might proceed in its foreclosure action as against only the homestead, which motion the court overruled, and required the Frick Company to proceed in its foreclosure action as against all the mortgaged property, and rendered a judgment requiring that the Frick Company, in satisfying its foreclosure judgment, should first exhaust all the mortgaged property not included in the homestead before resorting to the homestead, although such a procedure might leave Ketels's other creditors, who were asking for a marshaling of the securities, without any security for their debts. This attempted release and dismissal above mentioned were originated for the purpose that Frick and Company, another corporation, differ

ent from the Frick Company, might enforce a judgment lien which it had against the land which the Frick Company desired to release. This judgment lien extended only to the property not included in the homestead, and was also inferior and subsequent to the mortgage lien. We do not think that the court below committed any error in its aforesaid rulings: Butler v. Stainback, 87 N. C. 216, 220; Wilson v. Patton, 87 N. C. 318, 324; Dickson v. Chorn, 6 Iowa, 19; 71 Am. Dec. 382; Foley v. Cooper, 43 Iowa, 376; Bartholomew v. Hook, 23 Cal. 277; McLaughlin v. Hart, 46 Cal. 638; Brown v. Cozard, 68 Ill. 178; McArthur v. Martin, 23 Minn. 74; Ray v. Adams, 45 Ala. 168; Marr v. Lewis, 31 Ark. 203; 25 Am. Rep. 553; Colby v. Crocker, 17 Kan. 527; La Rue v. Gilbert, 18 Kan. 220.

Mr. Freeman, in his work on executions, uses the following language: "The more reasonable view is, that the equity of the homestead claimants to retain their home is at least equal to that of their creditors to have it sold, and therefore that chancery will not aid the latter by compelling the judgment creditor to first resort to the homestead. Perhaps a more difficult question is, May one who has a lien on homestead and other property be compelled by the homestead claimants to first resort to the latter? On the one side, it is insisted that the right to compel a marshaling of assets never existed in favor of judgment debtors, but only in behalf of persons claiming under them, and that the creation of the lien by the homestead claimants was, in effect, an agreement on their part that the lien-holder might, at his discretion, sell any of the property which was subject to such lien, and that such agreement precludes such claimants from exercising any control over such discretion. But homestead laws should be liberally construed, and no intention should be presumed; nor should any interpretation be indulged which is at variance with the natural and obvious purpose of the parties. The claimants, in the absence of any expression of a contrary intent, should be presumed to intend no further peril to their homestead than necessity demands, while he who received a mortgage from them should be regarded as obtaining a mere security for his debt, and not the right to employ that security in such a mode as to needlessly imperil the homestead. Hence a mortgage on a homestead and other property may fairly be interpreted as a waiver of the homestead right only so far as may be necessary to secure the debt; or in other words, as a stipulation that the homestead may be sold, if the

other property proves inadequate to satisfy the mortgagee's demand. Under this interpretation, the homestead claimants are entitled to compel the sale of the other property in preference to the homestead, and need not submit to the sale of the homestead until the other securities have been exhausted, without fully discharging the debt": 2 Freeman on Executions, sec. 440.

It is also said in the case of Wilson v. Patton, 87 N. C. 318, among other things, as follows: "Lest it may be supposed we have overlooked the point raised in the argument before us with regard to marshaling the fund, we take occasion to say that, in our opinion, that rule of equity has no application to a case where the homestead is involved. It is a 'consecrated right' granted by the constitution, and is an equity. superior to all other equities." See also the reasoning in the case of Colby v. Crocker, 17 Kan. 530 et seq.

If anything is said or decided in the case of Chapman v. Lester, 12 Kan. 592, contrary to the views herein expressed, the same is hereby overruled. But this decision is not in conflict with that, as the following language, used in the opinion of the court in that case, will show, to wit: "It may also be proper to say that we do not deny that a court of equity may, in a decree of foreclosure of a mortgage upon a homestead and other property, direct that the homestead be the last property offered for sale by the sheriff."

We think no error was committed by the court below. In our opinion, where a mortgage upon the homestead and other real estate is being foreclosed, the mortgagor has the right, as against the mortgagee and all other creditors and lienholders whose rights are not prior or superior to those of the holder of the mortgage, to require that before the homestead shall be resorted to for the purpose of satisfying the mortgage debt, all the other mortgaged property shall first be exhausted.

The judgment of the court below will be affirmed.

HOMESTEAD. - Where a mortgage covers a homestead and other property which is subject to a lien of a subsequent judgment, the debtor has no right to have the latter exhausted to satisfy the mortgage in order to preserve his homestead: White v. Polleys, 20 Wis. 503; 91 Am. Dec. 432. The statutory provision that other property of a debtor shall be exhausted in satisfaction of debts antecedent to homestead law, before resort is had to the homestead, is directory merely: Denegre v. Haun, 14 Iowa, 240; 81 Am. Dec. 480, and

note.

GREEN V. GReen.

[42 KANSAS, 654.)

VOID JUDGMENT - VACATING - JURISDICTION. Appearance by attorney, upon motion to contest the service of process upon defendant, is a special and limited appearance, and does not confer jurisdiction upon the court; hence a judgment rendered upon such appearance is void, and must be set aside.

ACTION for divorce by Harriet F. Green, against Oliver Green. She attempted to make service upon him by publication. The defendant did not appear nor answer, and judgment was rendered against him October 1, 1887. On October 3d he filed a motion to set aside such judgment, which motion is sufliciently stated in the opinion. Upon the hearing of the motion the court held it a general appearance on the part of defendant, sustained the motion, set aside the judgment, and gave defendant ten days in which to answer. This he failed

to do, and on January 16, 1888, judgment was rendered in favor of plaintiff. On January 17, 1888, defendant filed his motion to set aside this last judgment. The motion was overruled, and defendant appeals.

Welch and Welch, for the plaintiff in error.

John T. Bradley, for the defendant in error.

HORTON, C. J. The first question we are called upon to consider is, whether the motion which was filed by Oliver Green on October 3, 1887, and decided October 12, 1887, was a special or general appearance in the action. If the appearance of a party, though called special, is upon other than jurisdictional grounds, it is a general appearance: Burdette v. Corgan, 26 Kan. 104. So, if a motion contests the service only, and does not go beyond jurisdictional grounds, it is a special or limited appearance. The motion was presented to set aside the judgment of October 1, 1887, on the ground solely that no proper service had been made upon the defendant. By the motion, the defendant, Oliver Green, made a special appearance only. This motion did not give the court jurisdiction over the person of the defendant, nor authorize the court to require him to answer or plead. When the plaintiff, Harriet F. Green, obtained her judgment on the sixteenth day of January, 1888, there was on file in the district court, among the papers of the cause, the affidavit of C. M. Welch, showing that the firm of Messrs. Welch and Welch had no authority

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