Ellwood v. Wolcott

• Decision Date: 07 November 1884
• Citation: 32 Kan. 526,4 P. 1056
• Parties: WILLIAM ELLWOOD, et al., v. ORLOW WOLCOTT
• Court: Kansas Supreme Court

4 P. 1056

32 Kan. 526

WILLIAM ELLWOOD, et al., v. ORLOW WOLCOTT

Supreme Court of Kansas

November 7, 1884

Error from Reno District Court.

ACTION brought by Wolcott against Ellwood and others, to foreclose a mortgage. Trial at the May Term, 1884, and judgment for plaintiff. The defendants bring the case here. The opinion states the facts.

Judgment affirmed.

Whiteside & Hutchinson, for plaintiffs in error.

Scheble & Vandeveer, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

The facts in this case are these: On May 17, 1883, William Ellwood, Azariah Ellwood, John J. Ellwood and John Pricer executed their note for $ 1,200 to the order of V. B. Latham due in three years from date, with interest at ten per cent per annum, payable annually, and with Mary E. Ellwood secured the same by a mortgage on two lots in the city of Hutchinson, in Reno county. On November 26, 1883, V. B. Latham sold and transferred the mortgage to Wolcott without recourse. The mortgage contained this stipulation:

"If the taxes or assessments of any nature which are or may be assessed or levied against said premises or any part thereof are not paid when the same are by law due and payable, then the whole of said sums and interest thereon shall by these presents become due and payable, and the said party of the second part shall be entitled to the possession of said premises."

Taxes upon the premises were assessed for the year 1883, to the amount of $ 25.16. Without notice to the mortgagors, Wolcott paid the taxes on December 22, 1883, and thereupon commenced his action to foreclose the mortgage, alleging in his petition a breach of the condition of the mortgage in that the mortgagors had defaulted in the payment of the taxes assessed upon the mortgaged premises. The plaintiffs demurred to the petition, which the court overruled and rendered judgment in favor of the defendant in error.

Was any error committed thereby? We think not. The defendant in error did not pay the taxes until after December 20, 1883. The taxes assessed for 1883 were due under the statute before they were paid. The plaintiffs in error should have paid at least one-half of the taxes on or before December 20, 1883. The statute provides: "If any part of the said first half of said taxes remains unpaid after the twentieth day of December, the whole amount of tax charged against such person failing to pay...