Fisher v. Cowles

• Decision Date: 05 April 1889
• Citation: 21 P. 228,41 Kan. 418
• Parties: PAUL FISHER et al. v. J. ROCKWELL COWLES. J. ROCKWELL COWLES v. PAUL FISHER et al
• Court: Kansas Supreme Court

21 P. 228

41 Kan. 418

PAUL FISHER et al. v. J. ROCKWELL COWLES.

J. ROCKWELL COWLES v. PAUL FISHER et al

Supreme Court of Kansas

April 5, 1889

Error from Wilson District Court.

ACTION brought by Cowles against Fisher and others, upon a promissory note, and to foreclose a mortgage given to secure its payment. The defendants, Fisher and two others, filed a general demurrer to plaintiff's reply, which the court overruled. This ruling they have brought here for review. Trial by the court at the May term, 1886, and judgment for defendants. The plaintiff brought the case here. The material facts appear in the opinion. By agreement of parties the two cases were submitted together.

Judgement affirmed.

S. S Kirkpatrick, for plaintiff in error Cowles.

Hutchings & Keplinger, for defendants in error Fisher and others.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

This action was commenced by J. Rockwell Cowles, as plaintiff upon a negotiable promissory note, and to foreclose a mortgage given to secure the same, on the north half of the southeast quarter and the south half of the northeast quarter of section 17, township 29 south, of range 16, in Wilson county. They were executed by Gertrude L. Webster, and the petition alleges that Paul Fisher, Benj. Seem, Mary Seem, et al., set up some claim of ownership to the premises described in the mortgage, the precise nature of which is unknown to the plaintiff, but he avers that whatever said claim may be it is inferior to and subject to the claim of plaintiff. The defendants Fisher, Benj. Seem and Mary Seem in their answer, among other defenses, claim an interest in said land under a tax deed. In his reply, plaintiff Cowles avers that the tax deed is not valid; to this part of the reply the defendants filed a general demurrer. They claim that in an action to foreclose a mortgage the mortgagee cannot compel a defendant other than the mortgagor to litigate the question of paramount title.

This matter has been discussed in the case of Bradley v. Parkhurst, 20 Kan. 462, 464, and although the facts in that case are not exactly similar to this, yet we believe the rule therein announced should be extended to embrace this case, and upon that authority we believe the demurrer was properly overruled.

Afterward the case was tried in the Wilson district court, at the May term, 1886, by the court without a jury. The record discloses the facts to be as follows: On March 30, 1875, Gertrude L Webster, the owner of the tract above described, gave her note and mortgage on said land to Wm. R. Cope for $ 1,000; December 21, 1877, she, being still the owner, executed a note and mortgage thereon for $ 1,500 to J. W. Stover, who sold them in the east and fraudulently appropriated the proceeds; Mrs. Webster received no consideration whatever for said note and mortgage. On March 15, 1878, said Stover entered upon the records of the register of deeds of Wilson county a full satisfaction and release of his mortgage; August 6, 1878, Cope commenced proceedings on his note and to foreclose his mortgage, and under a judgment obtained in that action forty acres of said tract were sold at sheriff's sale to Paul Fisher, on the 27th of June, 1879; on the 18th of October, 1878, Gertrude L. Webster executed to A. M. Buchanon a mortgage upon the remaining 120 acres of land for $ 800, in order to obtain money to pay the balance due on the Cope mortgage, and the money so obtained was used for that purpose; on December 6, 1879, Buchanon commenced his action to foreclose his mortgage, and on February 20, 1880, obtained a judgment thereon. J. W. Stover almost immediately after obtaining the note and mortgage from Gertrude L. Webster sold and assigned them to Joseph B. Eldridge, of the banking firm of Cowles & Eldridge, of New Haven, Conn., who had been in the habit of purchasing and negotiating mortgages procured by Stover. Cowles & Eldridge sold and assigned this note and mortgage, and indorsed them to plaintiff, who was a farmer living in the vicinity of New Haven, Conn. As the coupons matured the plaintiff presented them to Cowles & Eldridge, who paid them, and then forwarded the coupons to Stover for collection, who paid them, Mrs. Webster believing that the note and mortgage to Stover had been destroyed. On August 3, 1880, an unacknowledged assignment of the Stover mortgage to plaintiff was recorded; this assignment was written on the back of the mortgage, and purported to have been executed by Stover on January 23, 1878. October 4, 1880, the land was sold under the Buchanon foreclosure, and in due course the sale was confirmed and deed executed to Paul Fisher, one of the defendants in error, who had no notice of the assignment of the Stover mortgage, or of the record of such assignment, or that there was any infirmity in the release of that mortgage entered...