Branch v. Milford Savings Bank

• Decision Date: 04 January 1897
• Docket Number: 118
• Citation: 5 Kan.App. 246,47 P. 555
• Parties: W. T. BRANCH, Assignee, v. MILFORD SAVINGS BANK
• Court: Kansas Court of Appeals

47 P. 555

5 Kan.App. 246

W. T. BRANCH, Assignee, v. MILFORD SAVINGS BANK

No. 118

Court of Appeals of Kansas, Northern Department, Central Division

January 4, 1897

January 4, 1897.

Error from Mitchell District Court. Hon. Cyrus Heren, Judge. Affirmed.

Judgment affirmed.

D. M Thorp, for plaintiff in error.

Clark A. Smith, for defendant in error.

OPINION

GILKESON, P. J.

The findings of fact made by the court are as follows:

"That the plaintiff is a corporation and was such corporation at the date of the commencement of this action; and that the Security Investment Company was, prior to the commencement of this action, a corporation doing business in the State of Kansas; that on the seventh day of February, 1891, the Security Investment Company made an assignment of all its property for the benefit of its creditors; and that W. T. Branch was, at the date of the commencement of this action and prior thereto, and ever since said date has been, the duly qualified and acting assignee of said Security Investment Company.

"That on the first day of November, 1887, one Richard H. Lewis executed to the said Security Investment Company his bond and mortgage of that date, due five years after date, for the sum of seven hundred dollars, the said mortgage being given to secure said bond in said amount; the said mortgage, given as security for said bond, covered lot ten, block eight, in the city of Glasco, Cloud County, Kansas; that the allegations of the terms of said mortgage in the petition, which were not denied under oath by the defendant, are: 'That by the terms of said mortgage said Richard H. Lewis contracted to insure, and did procure a policy of insurance upon, the dwelling house situated on said lot in the sum of $ 225 insuring said Richard H. Lewis and the holder of said bond and real-estate mortgage against loss or damage by fire in said sum of $ 225;' and that the allegations of the terms of said policy which are not denied under oath by the answer but denied generally, are: 'That by the terms of said policy of insurance it was expressly stipulated that the loss, if any, occurring thereunder was to be paid to the Security Investment Company, or its assigns, as mortgagee, as its or his interest might appear;' and that the conditions of the mortgage itself, as introduced in evidence, upon the question of procuring insurance provided: 'That the said first party shall keep the buildings on said premises insured in some responsible or approved company or companies for the benefit of said second party in the sum of not less than three hundred dollars and shall deliver the policies and renewal receipts to the said second party, and should said first party neglect so to do said second party may effect such insurance and recover of said first party the amount paid therefor, and interest at twelve per cent. per annum, and this mortgage shall stand as security therefor;' which provision in said mortgage is the only provision therein contained referring to insurance.

"That on the twenty-ninth day of November, 1887, the said Security Investment Company, by V. H. Branch, its secretary transferred the bond and mortgage to the plaintiff; that the assignment was without recourse save that it guaranteed, first, the prompt payment of the interest thereon at seven per cent....