Bradford v. Central Kansas Loan & Trust Co.

• Decision Date: 09 January 1892
• Citation: 47 Kan. 587,28 P. 702
• Parties: MARIA BRADFORD v. THE CENTRAL KANSAS LOAN AND TRUST COMPANY
• Court: Kansas Supreme Court

28 P. 702

47 Kan. 587

MARIA BRADFORD v. THE CENTRAL KANSAS LOAN AND TRUST COMPANY

Supreme Court of Kansas

January 9, 1892

Error from Graham District Court.

THE opinion contains a sufficient statement of the facts.

Judgment affirmed.

Z. C Tritt, and G. W. Jones, for plaintiff in error.

H. G Laing, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the first day of April, 1887, Clay Bradford, the husband of Maria Bradford, the plaintiff, was the owner of the southeast quarter of section 19, in township 7 south, range 20 west, in Graham county, in this state. Upon that day Clay Bradford executed and delivered to the Central Kansas Loan and Trust Company, of Russell, Kansas, a mortgage on the land for $ 600. This mortgage was filed for record in the office of the register of deeds for Graham county on the 5th day of April, 1887. Maria Bradford, the wife of Clay Bradford, did not sign the mortgage, and on the 29th day of August, 1887, brought her action against the Central Kansas Loan and Trust Company and Clay Bradford to have the mortgage declared null and void, upon the ground that the land at the date thereof was occupied as a residence by the family of Clay Bradford, and that the property had never been mortgaged with the joint consent of husband and wife. Subsequently, the loan and trust company filed its answer, denying that Clay or Maria Bradford, at the date of the mortgage, occupied the land as a residence, and also denying that at such date the land was the homestead of Clay Bradford or his family. Trial had before the court without a jury. The court made a general finding in favor of the loan and trust company, and rendered a judgment for costs against the plaintiff, Maria Bradford. She excepted, and brings the case here.

After the petition in error was filed in this court, on June 18, 1889, Mrs. Bradford died. After her death, her mother, Mrs. Nancy Dawson, was appointed administratrix. On the 18th day of March, 1891, Mrs. Dawson was removed as administratrix, and George F. Clark was appointed administrator in her place. At the late December session of this court, application was made to revive the proceeding brought by plaintiff in error in the name of George F. Clark, as administrator. It is not shown by any affidavit, or otherwise, when Mrs. Bradford died. Therefore, it does not appear affirmatively that the motion to revive has been made within a year, as required by §§ 433 and 434 of the civil code. The defendant has not filed any consent for a revivor. The statute provides that an order to revive an action upon the death of either the plaintiff or defendant cannot be made after the expiration of one year, without the consent of the opposite party. (Angell v. Martin, 24 Kan. 334; Railroad Co. v. Andrews, 34 id. 563; Mawhinney v. Doane, 40 id. 681; Tibbetts v. Deck, 41 id. 492.) Under the statute and the decisions of this court, upon the showing made there can be no revivor; and therefore the proceeding in error must be dismissed. (Gen. Stat. of 1889, PP 4530, 4531; Green v. McMurtry, 20 Kan. 189; Scroggs v. Tutt, 23 id. 181; Halsey v. Van Vliet, 27 id. 474; Myers v. Kothman, 29 id. 19; Tefft v. Citizens' Bank, 36 id. 457.)

We have fully examined the record, however, and if the motion to revive were in time, we do not perceive any sufficient ground upon which to rest the reversal of the judgment of the trial court. There was evidence before the court below tending to prove that Clay Bradford made a homestead entry upon the land described in the mortgage in April, 1879; that he occupied the land with his wife as a residence from 1879 to some time in 1882; that he proved up on his land in 1884 or 1885; that Mrs. Bradford left Graham county in June, 1883, going to Nebraska; that she remained there one year and then went to Wichita, in this state; that after being at Wichita a year she went to Kingman; that she was at...