160 P. 1029 (Kan. 1916), 20,300, Bacon v. Lederbrand

Docket Nº:20,300
Citation:160 P. 1029, 98 Kan. 631
Opinion Judge:MARSHALL, J.
Party Name:MAMIE BACON, Appellee, v. JOHN W. LEDERBRAND et al. (W. M. DICKSON, Appellant)
Attorney:Roscoe H. Wilson, of Jetmore, for the appellant; E. R. Otis, of Des Moines, Iowa, of counsel. J. B. Larimer, of Topeka, for the appellee.
Case Date:July 08, 1916
Court:Supreme Court of Kansas
 
FREE EXCERPT

Page 1029

160 P. 1029 (Kan. 1916)

98 Kan. 631

MAMIE BACON, Appellee,

v.

JOHN W. LEDERBRAND et al. (W. M. DICKSON, Appellant)

No. 20,300

Supreme Court of Kansas

July 8, 1916

Decided, July, 1916

Appeal from Hodgeman district court; ALBERT S. FOULKS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

VENDOR AND PURCHASER--Mortgage--Recitals in Recorded Deed--Constructive Notice. A purchaser of real property, the recorded deed to whose grantor contains the following: "Same to be free and clear of all encumbrance except . . . a second mortgage of Seventeen Hundred and Fifty Dollars ($ 1750) due Jan. 1st, 1914, which said second party assumes and agrees to pay," is not an innocent purchaser against such mortgage, although at the time of the conveyance to him the mortgage is not recorded and he has no actual notice thereof.

Roscoe H. Wilson, of Jetmore, for the appellant; E. R. Otis, of Des Moines, Iowa, of counsel.

J. B. Larimer, of Topeka, for the appellee.

OPINION

Page 1030

[98 Kan. 632] MARSHALL, J.

In this action the plaintiff recovered judgment for the foreclosure of a mortgage. W. M. Dickson, one of the defendants, appeals.

July 28, 1913, M. C. Schaeffer, being then the owner of the land in controversy, conveyed it by general warranty deed to A. R. Rhine. This deed contained the following:

"Same to be free and clear of all encumbrance except one first mortgage of Twenty Five Hundred Dollars ($ 2500) and interest at the rate of 6% from Mch. 3rd, 1913 and a second mortgage of Seventeen Hundred and Fifty Dollars ($ 1750) due Jan. 1st, 1914 which said second party assumes and agrees to pay. The lease on the above described land accompanies this transfer."

August 3, 1913, M. C. Schaeffer executed a mortgage on the land in controversy to W. E. Bacon for $ 1750. This mortgage was due January 3, 1914, but was not recorded until February 9, 1914. January 17, 1914, A. R. Rhine conveyed this land by general warranty deed to defendant W. M. Dickson. This deed was recorded January 20, 1914. It contained no mention of any $ 1750 mortgage. There was no evidence that W. M. Dickson had any actual notice of the existence of the $ 1750 mortgage. This mortgage was assigned to the plaintiff, and in this action she seeks to foreclose it.

Dickson in his answer denied the execution...

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