Bare v. Ford

• Decision Date: 10 November 1906
• Citation: 87 P. 731,74 Kan. 593
• Parties: BARE et al. v. FORD.
• Court: Kansas Supreme Court

87 P. 731

74 Kan. 593

BARE et al. v. FORD.

Supreme Court of Kansas

November 10, 1906

Rehearing Denied Dec. 8, 1906.

Syllabus

In an action to recover on a promissory note, a copy of which is set forth in the petition, proof of loss of the note and of its execution and contents may be received, although no mention of the loss is made in the petition.

[Ed Note.-For cases in point, see Cent. Dig. vol. 33, Lost Instruments, §§ 47, 50.]

Error from District Court, Clark County; E. H. Madison, Judge.

Action by J. C. Ford against J. O. Bare and Eva Bare. Judgment for plaintiff, and defendants bring error. Affirmed.

H. J. Bone and D. R. Hite, for plaintiffs in error.

Francis C. Price, for defendant in error.

OPINION

JOHNSTON, C. J.

This was an action to foreclose a mortgage. On December 1, 1887, C. J. McCray and wife gave a promissory note for $800 to Samuel G. Miller, due five years after date, and to secure its payment executed a mortgage on a quarter section of land in Clark county. On June 30, 1902, C. J. Carson purchased the note and mortgage for his sister, J. C. Ford, as a gift, taking a written assignment of each directly to her. The mortgage was delivered with the assignment, but there was no manual delivery of the note, as it appears to have been lost. Carson placed the mortgage and assignments in the hands of Ford’s attorney for foreclosure, but she was not aware that she had become the owner of the instruments until after the suit was brought, and, upon learning of the gift and action, she prosecuted the proceeding to a conclusion. The petition was in the ordinary form for foreclosure, alleging the execution of the note, the sale and indorsement of the same from Miller to Ford before maturity, and a copy of it with the assignment was set forth. Default was made by the McCrays on the note, but J. O. Bare and wife, who had been named as defendants, answered with a general denial; and, further, that the plaintiff was not the real party in interest; that the cause of action was barred by the statute of limitations, and that they had acquired the land by a tax deed executed by the county of Clark. Ford replied, denying generally the allegations of the answer, and also stating that the tax deed to Bare was void because of several defects in the tax proceedings. On the issues so formed, the jury found in favor of the plaintiff, and the mortgage was adjudged to be a valid lien on the land, the defendant’s tax deed was held to be illegal, and set aside, but the taxes paid by the Bares, with the accumulated interest, was declared to be a lien upon the land. The Bares complain and insist that the evidence was insufficient to establish a cause of action against them, and that the demurrer to the evidence should have been sustained.

The claim of insufficiency is based mainly on the fact that the plaintiff pleaded that she was the owner and holder of a promissory note, and only proved the assignment of a note previously lost. It is argued that an averment of the execution and existence of a note is not sustained by proof of a lost note. The execution of the note, which was set forth in the petition, was admitted by the defendants. The mortgage was assigned and delivered to the assignee, and it contained a copy of the note which corresponded with the copy set out in the petition, and the statute provides that "the assignment of any mortgage as herein provided shall carry with it the debt secured." Gen. St. 1901, § 4238. There was abundant testimony that Ford was the owner of the note, but the question remains whether there could be a recovery in the absence of an averment that the note had been lost. The loss of the note is no part of the cause of action and a statement of the loss is therefore not an essential allegation. The reason that loss or destruction of a note or other instrument is alleged in certain cases is to excuse the failure to give a copy of it in the pleadings or the failure to make profert of the instrument where it is required. In Sargeant v. Railroad Co., 32 Ohio St. 449, the Supreme Court of Ohio held that "an action may be sustained on a destroyed promissory note, and where a copy of the note is given with or made part of the petition the destruction of the note need not be averred in the petition." The same view is taken by the Supreme Court of Indiana in Cunningham v. Hoff, 118 Ind. 263, 20 N.E. 756, in which it was held that "where a copy of a note sued on is filed with the complaint as an exhibit no allegations in regard to the loss or destruction of the note are necessary to make the complaint good." Houy v. Gamel, 26 Tex.Civ.App. 123, 62 S.W. 76, was an action to recover on notes which had been lost, and it was contended that proof of the loss and secondary evidence of execution and contents could not be received because allegations of loss were not contained in the petition. It was held that "it was not necessary in this character of suit to allege the notes as having been lost. If it was an equitable suit to establish the existence of lost notes merely, such averments would probably have been...