Gano v. Martin
| Decision Date | 13 June 1900 |
| Docket Number | 443. [*] |
| Citation | 10 Kan.App. 384,61 P. 460 |
| Parties | WILLIAM GANO et al. v. LORENZO A. MARTIN |
| Court | Kansas Court of Appeals |
Decided June, 1900.
Error from Miami district court; JOHN T. BURRIS, judge.
Judgment of district court affirmed.
MORTGAGES OF REAL ESTATE -- Subrogation -- Limitation of Action. G. and his wife borrowed money from a loan company, and, to secure such loan, gave a mortgage upon real estate owned by the wife; the proceeds of such loan being used to pay off a mortgage held by M. upon such real estate. Prior to the execution and delivery of the mortgage given to the loan company the wife had been adjudged insane and the husband appointed as her guardian. The fact of the wife's insanity was fraudulently concealed from the loan company and it had no actual notice of such insanity. Payments of interest were made upon the mortgage given to the loan company within less than five years prior to the commencement of foreclosure proceedings upon such mortgage. Held, that the company was subrogated to the lien of the original mortgage, and that the fraudulent concealment of the wife's insanity prevented the statute of limitations from running until the discovery of the fraud; and held, further, that the payment of interest by G. was sufficient to toll the statute.
Sperry Baker, B. F. Simpson, and John C. Sheridan, for plaintiffs in error.
Beardsley & Gregory, and Sheldon & Sheldon, for defendant in error.
In the year 1886, Mary E. Gano and William Gano, her husband, to secure a note of $ 1200, due in two years, made, executed and delivered to J. T. Murtagh a mortgage on lots 4 and 5, block 126, in Paola, Miami county, owned by Mary E. Gano, and occupied by herself and husband as a homestead. On the 3d day of May, 1887, Mary E. Gano was by the probate court of Miami county adjudged to be a person of unsound mind, and letters of guardianship were duly issued to William Gano, her husband, who gave bond and entered upon the duties of such guardianship. In 1889, the Murtagh mortgage being due and unpaid, William Gano applied to the Jarvis-Conklin Mortgage Trust Company for a loan with which to pay off such mortgage. The application was in writing, and was signed, apparently by both Mr. and Mrs. Gano. The record does not show that the insanity of Mrs. Gano was disclosed to the company, or that it had any actual knowledge of such insanity and the guardianship of Mr. Gano. Upon this application the company made a loan, which was used in paying off the Murtagh mortgage, the Ganos giving their note, and a mortgage upon the property covered by the Murtagh mortgage, to the company to secure such loan. This note and mortgage were afterward assigned to the defendant in error herein, Lorenzo Martin. On July 8, 1895, the note and mortgage being due and unpaid, Martin began foreclosure proceedings in the district court of Miami county. To the petition filed by plaintiff the defendants answered, setting up as their defense the finding of the probate court of Miami county adjudging Mrs. Gano to be a person of unsound mind and incompetent to transact business, and it was also pleaded that Mr. Gano had been appointed her guardian. The plaintiff replied, and alleged that the mortgage company made the loan in good faith, for the purpose of paying off a prior mortgage, and without any knowledge of the insanity of Mrs. Gano; that the loan was made upon the written application of William Gano, which in no way disclosed the insanity, and upon a written abstract of title, which was furnished by said William and Mary E. Gano, and which failed to show the probate proceedings by which Mrs. Gano was adjudged to be insane; that said abstract of title was by the mortgage company submitted to counsel learned in the law, and it was certified to by counsel to show clear title in Mary E. Gano, subject to the prior mortgage of $ 1200, which was to be taken up by the new loan; that said William Gano and Mary E. Gano fraudulently concealed from the mortgage company, and all persons representing it, the fact of insanity, and that the plaintiff never knew or suspected any such insanity until the same was alleged in the answer. Plaintiff prayed that, in case the court should find the note and mortgage sued...
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...an unauthorized mortgage upon such property was entitled to be subrogated to the rights of the former mortgagee. In Gano et al. v. Martin, 10 Kan. App. 384, 61 P. 460, a mortgagee loaning money on an invalid mortgage executed by a husband and wife upon property of the latter while she was i......
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