The various assignments will not be considered separately. They are sufficient to raise the questions upon which the rights of the respective parties depend, and we will simply indicate the principles controlling the proper disposition of the case.
The three notes executed by Kinnison to Mathews in consideration of the conveyance of July 29, 1910, constituted a first lien upon the land. The deed of trust of July 5, 1911, for the benefit of Houston constituted a second lien upon the land. The rights of Houston under the deed of trust were not affected by the foreclosure proceedings in the suit of Utterback Harris Company against Kinnison, because Houston was not a party thereto. The purchaser under this foreclosure (Utterback Harris Company) acquired the land subject to, but not subordinate to, the rights of Houston under the deed of trust of July 5, 1911.
By the foreclosure proceedings under the deed of trust, the purchaser at the trustee's sale (Houston) acquired title to the land superior to that of Utterback Harris Company. This title was the superior one because the second lienholder was not a party to the foreclosure suit in the district court, and therefore the rights which he had under his deed of trust were unaffected by that foreclosure. On the other hand, the foreclosure under the deed of trust was made under the power of sale conferred in the instrument and passed title subject only to the prior vendor's lien. While the title secured by Houston under the foreclosure of the deed of trust was superior to the title acquired by Utterback Harris Company, under the first foreclosure, yet Houston's title so acquired was subordinate to the vendor's lien upon the land securing the notes of July 29, 1910, and the holders of such notes had the right to foreclose their lien. Utterback Harris Company had acquired the $82.05 vendor's lien note, and their remote vendee, Johnson, has succeeded to all of their rights. No other holder of this vendor's lien is a party to this suit. The trial court therefore erred in requiring the payment by Houston into the registry of the court of the amount of the two vendor's lien notes in the sums of $70 and $100. If the holders of those notes had been before the court and seeking to protect their rights, such action would have been proper. Not so, however, where they are not parties. Furthermore, the court's findings of fact and conclusions of law disclose that the evidence is silent as to whether these other two notes remain unpaid. It would certainly not be proper to require Houston to deposit in the registry of the court money to cover the amount of the other notes in the absence of any evidence to show that they remain unpaid. Especially is this true when, so far as the record discloses, these other two notes have become barred by limitation.
In view of the foregoing, judgment should have been entered in favor of Houston against Johnson and Kinnison for the title and possession of the lands in controversy, with proper provision in the judgment for the protection of Johnson in the payment of the amount found to be due on the note for $82.05. The pleadings of the parties set up all the facts, and are sufficient to give them all of the relief, legal or equitable, to which either may be entitled. The judgment of the court below will therefore be reformed and affirmed as follows:
In favor of Houston against A. B. Johnson and J. D. Kinnison for the title and possession of the lands in controversy. The amount due upon the $82.05 note, aggregating the sum of $125.02, is found to be and is established as a first lien upon the land in favor of Johnson, and the same is hereby foreclosed against Houston, and the land ordered sold in satisfaction thereof, and all proper and appropriate process for the enforcement of this judgment will be ordered issued.
Reformed and affirmed as indicated.