Ferguson v. Tarbox

• Decision Date: 01 February 1896
• Docket Number: 69
• Citation: 3 Kan.App. 656,44 P. 905
• Parties: FRED W. FERGUSON v. M. H. TARBOX et al
• Court: Kansas Court of Appeals

44 P. 905

3 Kan.App. 656

FRED W. FERGUSON v. M. H. TARBOX et al

No. 69

Court of Appeals of Kansas, Northern Department, Western Division

February 1, 1896

Opinion Filed May 5, 1896.

MEMORANDUM.--Error from Phillips district court; A. C. T GEIGER, judge. Action by M. H. Tarbox against Fred W Ferguson and others on a note and mortgage. Judgment for plaintiff. Defendant Ferguson brings the case to this court. Affirmed. The opinion herein, filed May 5, 1896, states the material facts.

Judgment affirmed.

H. A. Coates, and C. A. Lewis, for plaintiff in error.

G. A. Spaulding, for defendant in error M. H. Tarbox.

GARVER J., All the Judges concurring.

OPINION

GARVER, J.:

The judgment complained of in this case was rendered in an action brought by M. H. Tarbox against Fred W. Ferguson and others on a note and to foreclose a mortgage securing the same on a certain tract of land in Phillips county. The only question demanding consideration is whether Tarbox was barred from any right to maintain the action by reason of certain proceedings theretofore had in the district court of said county for the foreclosure of a second mortgage upon the same premises. It appears from the record that the note and mortgage held and owned by Tarbox were executed by Thomas J. Dorsey and wife, the owners of the land, in favor of one W. J. Neill, and were by Neill assigned and transferred, by a written assignment indorsed on the note and mortgage, to Tarbox. The mortgage was duly recorded in said county, but no public record was made of the assignment. Thereafter a second mortgage on the same premises was executed by Dorsey in favor of the Kansas Trust and Banking Company for $ 1,000, which was assigned to the Mortgage Trust Company of Pennsylvania. Subsequently said mortgage trust company began a suit in the district court of Phillips county to foreclose its mortgage, making W. J. Neill one of the parties defendant, Tarbox not being a party. Neill answered, alleging the execution of the prior mortgage, its assignment to Tarbox, and that Tarbox was the owner and holder thereof. One Hiram Bender, who voluntarily appeared in said action, filed an answer setting up that he was the owner and holder of the first mortgage of $ 500, by assignment from Tarbox. In said action the judgment of the court recognized Bender as the owner of the mortgage now claimed by Tarbox, and a decree of foreclosure was entered in his favor thereon. Judgment was also rendered therein in favor of the mortgage trust company on its note and mortgage. Under this judgment a sheriff's sale of the premises was made, for the consideration of $ 100, to E. G. Armsby, secretary of the Kansas Trust and Banking Company, and a sheriff's deed executed. Armsby conveyed by a quitclaim deed to the plaintiff in error, Ferguson, the deed reciting that the conveyance was "in consideration of $ 1 and other valuable considerations." Immediately after such conveyance Ferguson executed a mortgage thereon to the Kansas Trust and Banking Company to secure the payment of a note for $ 1,000.

It is contended on behalf of Ferguson and the Kansas Trust and Banking Company that all claims based upon the mortgage sought to be foreclosed in the present action by Tarbox were adjudicated and barred by the judgment in the former...