Hendricks v. Brooks

• Decision Date: 10 April 1909
• Docket Number: 15,951
• Parties: ROBERT S. HENDRICKS v. JAMES C. BROOKS
• Court: Kansas Supreme Court

101 P. 622

80 Kan. 1

ROBERT S. HENDRICKS v. JAMES C. BROOKS

No. 15,951

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Rawlins district court; WILLIAM H. PRATT, judge.

STATEMENT.

THIS suit was brought by James C. Brooks to foreclose a mortgage on land owned by Robert S. Hendricks. No personal judgment was sought or obtained against Hendricks, but the amount due upon a note and mortgage executed by one Collins and wife, at a time when Collins was the owner of the land, was found and adjudged a lien on the land, and the land was ordered sold to satisfy the lien unless the judgment should be paid.

The facts disclosed are in brief as follow: Collins acquired title to the land from the government on November 3, 1888. With his wife he executed a mortgage on the land, dated November 1, 1888, to secure his promissory note to one Frahm for $ 500. The acknowledgment of the execution of the mortgage was dated November 20, 1888, and the mortgage was recorded on the following day. On the 28th day of the same month Collins and wife made a deed of the land to one Tate and thereby warranted the land to be free and clear of all encumbrances, "except a mortgage of $ 500, dated November 20, 1888, which grantee assumes and agrees to pay." Soon after the making of the deed, and before the maturity of the debt, Tate removed from the state of Kansas with his wife, and they were continuously absent therefrom thenceforth to the time of the trial, which occurred in November, 1907. Brooks became the owner of the note and mortgage by successive assignments from Frahm, and Hendricks became the owner of the land by conveyance from Tate prior to the commencement of the suit.

The petition was in the usual form in a foreclosure suit, and prayed for judgment against Tate in the amount of the note and interest and a decree of foreclosure of the mortgage lien as to all of the defendants. Hendricks answered by a general denial, and especially pleaded the statute of limitations.

There was no claim that, in the conveyance of the land from Tate to Hendricks, Hendricks assumed and agreed to pay the mortgage.

Judgment affirmed

SYLLABUS

SYLLABUS BY THE COURT.

1. EVIDENCE--Extrinsic--Identity of a Mortgage with One Described in a Deed. The identity of a mortgage, dated November 1 and acknowledged November 20, with a mortgage described in a deed as for the same amount and as dated on the 20th day of the same month, is a question of fact which may be proved by evidence aliunde.

2. CONTRACTS--Statute of Frauds--Assumption of a Mortgage--Acceptance of Deed--Evidence. The acceptance of a deed by the terms of which the grantor warrants the land to be free and clear of all encumbrances, "except a mortgage of $ 500, dated November 20, 1888, which grantee assumes and agrees to pay," makes it a contract in writing binding upon the grantee to pay the mortgage, and suit can be instituted upon it and the same rights maintained as though the deed were also signed by the grantee; and a subsequent conveyance of the land by the grantee is conclusive evidence of his acceptance of the deed and of the contract therein contained.

3. LIMITATION OF ACTIONS--Foreclosure of a Mortgage--Absence from the State. Upon the acceptance of such deed the debt becomes the independent debt of the grantee to the holder of the mortgage. The limitation of the time for bringing a suit thereon begins to run upon such acceptance, and the running of the statute may be suspended by the absence of the obligor from the state, as in other cases.

4. LIMITATION OF ACTIONS--Foreclosure of a Mortgage. One to whom the grantee in such deed conveys the land takes the title subject to the mortgage lien, if such mortgage be of record, and the lien of the mortgage subsists against the land so long as a suit may be maintained on the indebtedness against his grantor; in other words, a suit to enforce the mortgage lien is not barred by limitation until an action against the debtor for a personal judgment is also barred.

J. P. Noble, for the plaintiff in error.

Bennett R. Wheeler, John F. Switzer, and Fred Robertson, for the defendant in error.

OPINION

SMITH, J.:

Four questions are involved in the determination of this case: (1) The identity of the mortgage foreclosed with the mortgage which Tate assumed and agreed to pay in his deed from Collins and wife. (2) Did the acceptance of the deed from Collins and wife by Tate constitute an independent contract of indebtedness from Tate to the mortgagee or his assignees upon which the latter could, with personal service, have obtained a money judgment against Tate? (3) Was the personal action if any such action ever existed in favor of an assignee of the mortgage against Tate, barred by the statute of limitations? (4) If the mortgage mentioned in the deed was the same as the one assigned to Brooks, and if, as it appears, an action on this indebtedness was barred by limitation as...