Fabrique v. Company

• Decision Date: 07 July 1904
• Docket Number: 13,764
• Citation: 69 Kan. 733,77 P. 584
• Court: Kansas Supreme Court
• Parties: A. H. FABRIQUE et al. v. THE CHEROKEE & PITTSBURG COAL AND MINING COMPANY et al

77 P. 584

69 Kan. 733

A. H. FABRIQUE et al. v. THE CHEROKEE & PITTSBURG COAL AND MINING COMPANY et al

No. 13,764

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Error from Sedgwick district court; D. M. DALE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

CONVEYANCE -- When a Deed is a Mortgage. A mortgage is a defeasible conveyance to secure the payment of a debt. Where there is no continuing debt, the execution of a deed with a simultaneous contract to reconvey upon the payment of certain sums of money by the grantor to the grantee within a specified time the payment of which is optional with the grantor, is a conditional sale and not a mortgage.

C. V Ferguson, for plaintiffs in error.

A. A. Hurd, and O. J. Wood, for defendants in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

This was an action to have a certain deed and contract declared to be a mortgage, to ascertain the amount due the defendant thereon, and to have the premises sold to satisfy the amount so found due in case it should not be paid within a time specified by the court. The defendant filed a general demurrer to the petition, which was overruled. On the trial it objected to the introduction of any evidence under the petition. This objection was sustained and judgment rendered for defendant for costs. Plaintiff brings error.

The petition shows the following material facts: In 1892 L. G. Scheetz was the owner of lots 113 and 115 on Douglas avenue, in Griffenstein's addition to the city of Wichita. While such owner he undertook to construct thereon a three-story brick and stone building, according to the plans and specifications referred to in the agreement. After performing some portion of the work he became greatly involved for material and labor, and among his creditors was L. C. Jackson, to whom he executed a mortgage on this property for $ 4800. This mortgage was assigned to defendant and, at the time of the agreement hereinafter set out, had been foreclosed and the premises ordered sold. The property had also been deeded for taxes, the amount of which was about $ 1200. By reason of his indebtedness Scheetz was compelled to suspend the construction of this building.

On September 28, 1897, Scheetz executed a warranty deed of the property to defendant. On September 21, 1897, the parties entered into the following agreement:

"This contract, made and entered into on this 21st day of September, 1897, by and between the Cherokee & Pittsburg Coal and Mining Company, a corporation, party of the first part, and L. G. Scheetz, party of the second part,

"WITNESSETH That whereas the party of the first part is the owner in fee simple of the following-described real estate, situated in the county of Sedgwick and state of Kansas, to wit: Lots Nos. 113 and 115 on Douglas avenue, in Griffenstein's addition to the city of Wichita, Kan.;

"AND WHEREAS, there is situated upon said real estate a stone foundation and partly constructed brick walls for a three-story brick building thereon, the construction of which building has heretofore been undertaken and commenced by the party of the second part for and on behalf of Jacob Scheetz;

"AND WHEREAS, the party of the first part desires, at as early date as it can profitably do so, to sell the above-described real estate, and the party of the second part desires, as soon as he can arrange to do so, to purchase said real estate;

"AND WHEREAS, in the meantime it is desired by both parties to this agreement that the said building, the construction of which has heretofore been commenced upon said property, be completed according to the original plans and specifications prepared by E. Dumont, an architect, and in pursuance of which the construction of said building has heretofore been commenced:

"NOW, THEREFORE, the party of the first part agrees to proceed with the construction of said building, according to said original plans and specifications without unnecessary delay.

"Said specifications and plans may be altered by the agreement of the parties hereto; and to keep a correct account of all moneys expended and paid out in construction and completion of said building. The party of the first part further agrees to sell and convey said real estate to the party of the second part or to his assigns at any time within two years from this date, upon the payment to the party of the first part by the party of the second part or his assigns the following-named sums, with interest from the time hereinafter stated, to wit:

"1st. The sum of four thousand eight hundred and ninety-seven and 48/100 ($ 4897.48) dollars, with interest from the 10th day of January, 1897, at the rate of nine per cent. (9%) per annum, until the date of such payment.

"2d. The sum of five hundred twenty ($ 520) dollars, with interest thereon at the rate of nine per cent. (9%) per annum from the 29th day of May, 1897, until the time of such payment.

"3d. The sum of twelve hundred and forty ($ 1240) dollars, with interest thereon at the...