Ellis v. Snyder

• Decision Date: 07 January 1911
• Docket Number: 16,343,16,341
• Citation: 83 Kan. 638,112 P. 594
• Court: Kansas Supreme Court
• Parties: CHARLES E. ELLIS, revived in the name of the Commonwealth Title, Insurance & Trust Company, and Franklin L. Lyle, as Executors, etc., Appellees, v. ELIZABETH D. SNYDER et al., Appellants. CHARLES E. ELLIS, revived in the name of the Commonwealth Title, Insurance & Trust Company, and Franklin L. Lyle, as Executors, etc., Appellants, v. ELIZABETH D. SNYDER et al., Appellees

112 P. 594

83 Kan. 638

CHARLES E. ELLIS, revived in the name of the Commonwealth Title, Insurance & Trust Company, and Franklin L. Lyle, as Executors, etc., Appellees, v. ELIZABETH D. SNYDER et al., Appellants.

CHARLES E. ELLIS, revived in the name of the Commonwealth Title, Insurance & Trust Company, and Franklin L. Lyle, as Executors, etc., Appellants, v. ELIZABETH D. SNYDER et al., Appellees

Nos. 16,341, 16,343

Supreme Court of Kansas

January 7, 1911

Decided January, 1911.

Appeal from Sumner district court.

Case remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. LIMITATION OF ACTIONS--Suspension of the Statute. A husband and wife executed a note secured by mortgage on their land, and the husband thereafter died, having previously conveyed the title to his wife. The widow rented the farm to her son-in-law, and during such tenancy the widow died. The son-in-law, with his wife, continued in possession of the farm, and before the expiration of five years from the maturity of the note made a small payment on the debt. They continued in possession for a number of years, until this action to foreclose the mortgage was brought, with the acquiescence of the brothers and sisters of the wife; and her husband, with her consent, made several payments upon the indebtedness and paid the taxes on the land, all of which payments were made from the proceeds of crops raised upon the land. No interval of five years elapsed between such payments. He neither paid nor contracted to pay any rent to any of the heirs. Held, that such payments prevented the running of the statute of limitation in favor of any of the heirs against the mortgage debt.

2. TENANCY IN COMMON--Possession of Mortgaged Premises--Interest--Rent. A tenant in common in possession of mortgaged real estate with the acquiscence of the other cotenants, and in the absence of any contract to pay rent, owes a duty to the other cotenants to pay the interest maturing on the mortgage and the taxes accruing on the land.

James T. Herrick, and Harold W. Herrick, for the executors of Charles E. Ellis.

Ed T Hackney, for Elizabeth D. Snyder et al.

OPINION

SMITH, J.:

Both parties appealed from the judgment of the trial court, and by agreement the appeals were submitted together.

On February 1, 1889, John W. Gray and Elizabeth A. Gray, his wife, executed a mortgage on the land in question to secure the payment of a note for $ 2000, payable five years after that date, with interest. The Southern Kansas Mortgage Company was the mortgagee, but before the commencement of this action assigned the note and mortgage to Charles E Ellis, who brought the action to foreclose the same. Both Gray and his wife died before the maturity of the note and mortgage. Before his death the husband conveyed the land to his wife. She died April 10, 1892, leaving as her only heirs at law Elizabeth D. Snyder (who had been theretofore married to one Bert Snyder), Tina Gray (who together with Elizabeth D. Snyder had attained her majority), and three sons and two other daughters, who were all minors. At a time prior to the death of Mrs. Gray, Bert Snyder had rented a portion of the land in question, and soon after her death he and his wife, Elizabeth, moved upon the land and continued to occupy it until this action was brought. Bert Snyder made an oral contract with the guardian of the minor children for the purchase of their interest in the land, conditioned upon the approval thereof and order of the probate court. No action, however, was taken by the court in relation thereto.

Bert Snyder borrowed money of the mortgagee to pay insurance, buy seed wheat, pay taxes, etc., from September 18, 1895, to February, 1900. He made payments from time to time to the mortgagee from October, 1895, to November, 1901, which were almost entirely from the proceeds of wheat and corn raised on the farm. On November 14, 1896, he paid the mortgagee, from the proceeds of wheat, $ 44.20; and on December 20, 1896, from the proceeds of corn, $ 19.25. At neither of these dates was he indebted to the mortgagee on any account other than the mortgage. These two payments aggregating $ 63.45, must be regarded as payments on the interest, and at the time the payments were made neither the principal of the mortgage debt nor any interest thereon had been due five years. Thereafter, from time to time, Bert Snyder borrowed further sums of money from the holder of the mortgage, and repaid certain amounts from the proceeds of the farm, until November 16, 1901, when the sum of the payments exceeded the amounts borrowed by over $ 700; but at no...