"(1)
On March 10, 1890, the defendants Louisa L. Baker and Robert
H. Baker, her husband, executed and delivered to the
defendant A. Jacobitz their promissory note in the sum of
seven hundred dollars ($ 700), due and payable on the 10th
day of March, 1893, with twelve per cent. (12%) interest
after maturity.
"(2)
That to secure the payment of the above-described note the
said Louisa L. Baker and Robert H. Baker, her husband
executed and delivered to the said A. Jacobitz, the defendant
herein, their certain real-state mortgage, dated the same
date as the note, March 10, 1890, upon the
following-described real estate . . . in Marion county
Kansas, which said real-estate mortgage was recorded in the
office of the register of deeds of Marion county, Kansas, on
March 12, 1890.
"(3)
That afterward, and within three years from the date of said
promissory note, the said A. Jacobitz, for a valuable
consideration, and before the maturity of said note, sold,
assigned and delivered the said promissory note and mortgage
to John Buchanan by written indorsement indorsed on said
promissory note.
"(4)
That on the 4th day of March, 1895, the said John Buchanan
died intestate, leaving the following-named heirs, to wit:
Mary Jane Buchanan, widow; William H. Buchanan, son; Samuel
Buchanan, son; Nancy B. Vosbinder, daughter; four children of
Susannah Rutledge, daughter, deceased, to wit: Charles
Rutledge, Mary Rutledge, Ross Rutledge and Ira Lee Rutledge;
John N. Buchanan, son. The said Ira Lee Rutledge being a
minor at said time.
"(5)
That prior to the death of said John Buchanan he had loaned,
upon real-estate securities, sixteen hundred dollars ($ 1600)
of his wife's money, and the said John Buchanan had taken
the securities for said loans in his own name, and at the
time of his death the said $ 1600 which the said John
Buchanan had loaned for and in behalf of his wife had not
been returned to his said wife, Mary Jane Buchanan, nor had
she any securities therefor.
"(6)
On March 30, 1895, all of the above-named heirs of John
Buchanan, for the purpose of settling up and distributing the
estate of John Buchanan without the expense of
administration, met and organized themselves as the heirs of
John Buchanan, deceased. They elected a chairman, president
and secretary, and kept a record of the proceedings of such
organization of heirs. They appointed one Samuel Buchanan as
the agent and representative of such heirs to make due and
proper settlement of the estate, subject to the approval of
the heirs themselves. The said Samuel Buchanan, as
representative and agent of said heirs, collected all of the
assets of said estate and paid all of the debts owing by the
said John Buchanan at the time of his death, which debts were
of a very insignificant amount. And the said organization of
heirs held meetings from time to time, up to and including
December 16, 1898; at the meeting of the said heirs all of
the heirs were represented, either in person or by their duly
qualified guardian or authorized agents.
"(7)
That at one of the meetings of the said organization of heirs
of the said John Buchanan it was mutually agreed and ordered
that in consideration of the said $ 1600 of money belonging
to the widow, Mary Jane Buchanan, which had been loaned upon
real estate prior to John Buchanan's death, and was a
part of her distributive share of said estate, said
above-described promissory note of seven hundred dollars ($
700), signed by Louisa L. Baker and Robert H. Baker, her
husband, and secured by the mortgage as above described,
together with other notes and mortgages belonging to the
estate of John Buchanan, should be turned over and become the
property of the said Mary Jane Buchanan, widow of the said
John Buchanan, deceased, and the same was, about April 9,
1895, thus turned over and delivered to the said Mary Jane
Buchanan as her individual property.
"(8)
That on or about the 9th day of March, 1905, the said Mary
Jane Buchanan for a valuable consideration sold and delivered
said promissory note and mortgage, above described, to the
said E. Baxter, plaintiff in this action.
"(9)
That on the 17th day of November, 1893, the said mortgagors,
Louisa L. Baker and Robert H. Baker, her husband, for a
valuable consideration, executed and delivered to one C. E.
Malcomb their deed, and thereby conveyed to the said C. E.
Malcomb the real estate described in the said mortgage sought
to be foreclosed in this action, and said deed was made
subject to the mortgage sought to be foreclosed in this
action.
"(10)
That on the 31st day of August, 1895, the said C. E. Malcomb
and wife deeded the said above-described real estate included
in said mortgage to the defendant A. Jacobitz; said
conveyance was made subject to the mortgage sought to be
foreclosed in this action.
"(11)
That said defendant A. Jacobitz, on the 20th day of March,
1902, made, executed and delivered to said defendant C. O. F.
Brown, cashier, a warranty deed for said lots. . . . The
defendant C. O. F. Brown, at the time of the execution and
delivery of said deed, was cashier of the said Farmers and
Mechanics National Bank of Cadiz, Ohio; . . . said deed was
given by said defendant A. Jacobitz to said defendant C. O.
F. Brown, cashier, as security for the payment of an
indebtedness due from said defendant A. Jacobitz to the said
Farmers and Mechanics National Bank of Cadiz, Ohio, and is
and was intended to be a mortgage on said property by said
parties. Subsequently, on March 1, 1906, A. Jacobitz conveyed
by quitclaim deed all his right, title and interest in said
lots to the defendant C. O. F. Brown, cashier.
"(12)
That the said Louisa L. Baker and Robert H. Baker, her
husband, paid to the said John Buchanan the annual interest
due upon said note and mortgage prior to the time they deeded
the same to C. E. Malcomb.
"(13)
That some person paid to the said John Buchanan all annual
payments of interest that became due after the said Malcomb
received the title to said land and prior to the death of
John Buchanan, on March 4, 1895.
"(14)
That subsequent to the death of the said John Buchanan, on
March 4, 1895, and up to and including the year 1903, the
said A. Jacobitz paid to the said Mary Jane Buchanan . . .
the annual interest due upon said mortgage . . . each year.
"(15)
Subsequent to the indorsement of the promissory note and
mortgage to the plaintiff, E. Baxter, in March, 1905, by Mary
Jane Buchanan, the question of the legal title of the said E.
Baxter to the said promissory note having come up, for the
purpose of perfecting the title of the said E. Baxter to the
said promissory note and mortgage, on the 28th day of April,
1906, one Samuel Buchanan, a son and heir at law of the said
John Buchanan, deceased, was by the probate court of Carroll
county, in the state of Ohio, duly appointed and qualified as
administrator of the estate of John Buchanan, deceased, and
letters of administration, authorized by law, were duly
issued to him as such administrator.
"(16)
That on the 28th day of April, 1906, the said probate court
of Carroll county, state of Ohio, made and entered of record
the following order and judgment in the matter of the estate
of said John Buchanan, deceased, to wit:
"'IN
PROBATE COURT.
"'State
of Ohio, Carroll County, SS.
"'On
this 28th day of April, A. D. 1906, it appearing upon the
application of Samuel Buchanan, administrator of the estate
of John Buchanan, deceased, that all of the debts of said
estate have been paid and that there remains in his hands a
certain note belonging to said estate, and that it is the
desire of the persons interested in said estate that the same
be distributed in kind to Mary Jane Buchanan, widow of said
John Buchanan, deceased, and that she be permitted to retain
all payments of principal and interest made to her on said
note and indorsed thereon, commencing on March 10, 1895, and
subsequent to that date, as a part of her interest in said
estate, and it appearing that such distribution is with the
consent and agreement of the heirs and widow of said John
Buchanan, deceased, made in April, 1895, it is ordered that
said administrator distribute the said note to said widow of
said decedent, and permit her to retain all payments, of
interest and principal paid to her on March 10, 1895, and
subsequent thereto, of which said note the following is a
copy, with all credits and indorsements thereon, to wit:
[Here follows copy.]'
"And
thereupon said administrator filed his report in the
foregoing matter, in words and figures as follows, to wit:
"'In
Probate Court of the County of Carroll, State of Ohio:
"'In
the matter of the estate of John Buchanan, deceased.
"'In
pursuance of the order of said court, in relation to the
distribution of the...
