Freese v. Rusk
| Decision Date | 10 November 1894 |
| Citation | 54 Kan. 274,38 P. 255 |
| Parties | JOHN P. FREESE v. JAMES RUSK et al |
| Court | Kansas Supreme Court |
Error from Kingman District Court.
ACTION by Freese against Rusk and two others to foreclose a mortgage. Judgment was rendered for the defendants, and plaintiff comes to this court. The opinion states the facts.
Judgment affirmed.
James Lawrence, for plaintiff in error.
C. W Fairchild, for defendant in error.
OPINION
This was an action to foreclose a mortgage on a tract of real estate in Kingman county that had been given to secure a loan of money. The land in question was a portion of the Osage Indian trust and diminished reserve, and on July 10, 1882 Sarah Alverson, claiming the right of preemption, made a cash entry of the same at the local United States land office at Wichita. On July 20, 1882, she conveyed the land by deed of general warranty to H. L. Nye, who later conveyed the same to the parties who executed the mortgage in question. James E. Coffman, who was made a defendant, questioned the validity of the mortgage, and alleged that those who executed it had no title to the land. He alleged, and offered proof to show, that on August 20, 1884, he initiated a contest of the entry made by Sarah Alverson, upon the ground that Sarah Alverson was known as Phamelia S. Coovey, and under that name had made a prior filing upon other land in that vicinity; that she had not resided on the land, but that it was used as a sheep range by H. L. Nye, to whom it was subsequently conveyed. Upon the contest, there was testimony tending to show that she was not an actual settler upon the land, but was only taking the steps necessary to prove it up for Nye, to whom it was conveyed as soon as the entry was complete. After some delay, and on April 28, 1887, the entry of Sarah Alverson was canceled, and no appeal was taken from the decision. Coffman was then permitted to enter the land, and he was in possession of the property until the commencement of this action.
It appears that on July 11, 1885, Nye, who was the grantee of Sarah Alverson, conveyed the land to James A. Rusk, who, in April, 1886, mortgaged the same to the plaintiff in error. As will be seen, the mortgage was executed after a final receipt had been secured by Sarah Alverson, but before the patent was issued, and also that it was executed after a contest had been initiated by Coffman, and while it was pending. The trial court held that, the entry of Sarah Alverson having been canceled and set aside, the mortgage executed by her grantee was invalid. There was a further finding that Coffman was the owner of the land, and a decree was entered...
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