[Copyrighted Material Omitted]
Error
from Atchison District Court.
ACTION
brought on October 24, 1884, by Robert McCrie against Samuel
A. Stoner and Nannie E. Stoner, his wife, to foreclose a
mortgage and enforce a first lien on the premises described
in the petition, the same being the homestead of the
defendants. G. C. Hixon & Co. and Howell, Jewett &
Co. were made defendants, they being judgment creditors of
the mortgagors, and claiming liens on the premises for
improvements thereon. Howell, Jewett & Co. stated, among
other things, in their answer and cross-petition, that--
"The
pretended mortgage set up in plaintiff's petition was
never signed or executed by the defendant, Nannie E. Stoner
but that her name was falsely and fraudulently forged to said
instrument by her husband, Samuel A. Stoner; that said
pretended mortgage was not made or executed, and that said
conveyance was not made by and with the joint consent of
Samuel A. Stoner and Nannie E. Stoner, husband and wife; that
the acknowledgment of said mortgage is false, fraudulent, and
untrue."
McCrie
in his reply to this answer and cross-petition, averred
that--
"In
addition to the acknowledgment set up in his petition, the
defendant, Nannie E. Stoner, being fully advised in the
premises, did, on the 27th day of December, 1881, execute the
writing and acknowledge the same as set forth in a copy
hereto attached and made a part hereof, marked 'Exhibit
A,' and thereby fully confirming her former
acknowledgment and the acts and doings of her husband, Samuel
A. Stoner."
"Exhibit
A" is as follows:
"STATE
OF KANSAS, COUNTY OF ATCHISON, SS.: I, Nannie E. Stoner, wife
of Samuel A. Stoner, of Atchison county, Kansas, hereby
acknowledge as my act and deed the giving and signing and
joining with my husband, Samuel A. Stoner, in the giving and
signing of a certain mortgage, dated November 12, 1881, and
acknowledged and signed before Chas. F. Goodrich, notary
public in and for Atchison county, Kansas, for the sum of
five hundred dollars, on lots Nos. 1, 2, 3, 4, 5, and 6, of
block No. 1, in Lancaster, Atchison county, Kansas; and
hereby agree to and ratify all matters and things done for me
and in my name by my said husband, Samuel A. Stoner, in the
giving and making of said above-described mortgage deed.
"Dated
at Lancaster, Atchison county, Kansas, this 27th day of
December, 1881.
[Seal.]
NANNIE
E. STONER."
"Acknowledged
and subscribed before me, on the day and date last above
written.
THOMAS
B. McGEE,
[Seal.]
Notary
Public."
Trial
by the court at the February term, 1885, a jury being waived.
The record does not contain the evidence, but the conclusions
of fact and of law are as follows:
"CONCLUSIONS
OF FACT.
1. On
or about November 12, 1881, the plaintiff loaned to the
defendant, Samuel A. Stoner, the sum of $ 500, upon the note,
a copy of which is set forth in the plaintiff's petition,
and the mortgage, a copy of which is attached to said
petition as 'Exhibit A.' Samuel A. Stoner made the
arrangement with the plaintiff in Atchison, where the
plaintiff resides, and the said Samuel A. Stoner was to have
the note and mortgage executed by himself and wife, and was
then to obtain the money. Said Samuel A. Stoner and Nannie E.
Stoner were husband and wife, and they with their children
resided upon and occupied the premises described in said
mortgage as their homestead, the same consisting of less than
one acre, in the town of Lancaster, in Atchison county,
Kansas.
"2.
Said Nannie E. Stoner did not execute said note, nor said
mortgage, but her name was signed to each of them, probably
by her said husband. Said Samuel A. Stoner brought said
mortgage to C. F. Goodrich, a notary public in the city of
Atchison, and requested him to certify to the acknowledgment
of' the same by himself and his wife, but said C. F.
Goodrich refused to do so. The next morning said Samuel A.
Stoner came again to said C. F. Goodrich and presented to him
a letter purporting to be written by said Nannie E. Stoner,
and stating that she had signed the mortgage, and that it was
her act and deed, and requesting him to certify to its
acknowledgment. Said C. F. Goodrich, as such notary public,
then made out and executed the certificate of acknowledgment
which forms a part of said 'Exhibit A'; but said
Nannie E. Stoner never in fact appeared before said C. F.
Goodrich, notary public, as stated in said certificate of
acknowledgment, she being at Lancaster, ten miles distant
from Atchison, when said official act was done.
"3.
Said Samuel A. Stoner then took the note and mortgage to the
plaintiff and delivered the same to him and received from him
the money as stated in conclusion of fact 1. The plaintiff
did not know the signature of said Nannie E. Stoner, and
supposed that the note and mortgage had been duly executed by
her, and that she had duly acknowledged the mortgage before
said C. F. Goodrich, notary public; and in making the loan
and in taking the note and mortgage, he acted in entire good
faith and without suspicion of bad faith on the part of said
Samuel A. Stoner, or of any wrongful or criminal act on the
part of said C. F. Goodrich, notary public. Said mortgage was
duly recorded on November 21, 1881.
"4.
Said C. F. Goodrich afterward heard that said Nannie E.
Stoner had never signed the mortgage, and being uneasy about
his position in the premises, he got Thomas B. McGee, another
notary public residing in the city of Atchison, to go with
him to Lancaster to see her about it, on December 27, 1881.
Said Samuel A. Stoner was not at home, and they found her at
home alone. Said Thomas B. McGee explained to her the nature
of their business, and told her that she had a right to do as
she pleased, but that if her husband had forged her name he
was liable to get into trouble. She expressed her willingness
to ratify what had been done, and she signed and executed the
instrument, a copy of which is attached to the
plaintiff's reply as 'Exhibit A.'
"5.
Soon afterward, said Samuel A. Stoner left this state, but
his wife and children remained on said premises, he coming to
visit them occasionally, until sometime in 1883, when said
Nannie E. Stoner and her children also left the state, and
ever since said time the premises have been abandoned as a
homestead. Said promissory note has not been paid, nor any
part thereof, except as follows: About April 1, 1884, after
the abandonment of said premises as a homestead, said Samuel
A. Stoner turned over the possession thereof to the
plaintiff, upon the understanding that the plaintiff was to
collect the rents thereof and apply the same on taxes and
necessary repairs, and apply the balance as a credit on said
indebtedness. The plaintiff has collected $ 80, and has paid
out $ 40.70 for taxes and repairs, leaving a balance of $
39.30 to be credited on said promissory note; and there is
due the plaintiff for rent the further sum of $ 25
uncollected, which, when collected, together with rent
accruing and collected hereafter, shall also be applied upon
said indebtedness.
"6.
The defendants, G. C. Hixon & Co., furnished to said
Samuel A. Stoner certain lumber to be used, and which was
used, in making improvements on said homestead premises, and
on February 16, 1882, they recovered a judgment therefor
against said Samuel A. Stoner before R. B. Drury, a justice
of' the peace of the city of Atchison, in Atchison
county, Kansas, for the sum of $ 74.76 debt, and $ 7.10
costs. A transcript of said judgment was duly filed in the
office of the clerk of the court, on March 16, 1882, and the
same was duly entered so as to become a judgment of this
court from said time. On July 22, 1882, an execution was duly
issued upon said judgment by the clerk of this court. The
same was levied upon said premises, which were advertised by
the sheriff for sale, but afterward, on September 21, 1882,
said execution was returned by the sheriff unsatisfied, by
direction of the attorney of said G. C. Hixon & Co. Costs
upon said execution, $ 17.30. No part of said judgment has
ever been paid or satisfied.
"7.
On July 6, 1882, Howell, Jewett & Co. obtained a judgment
against said Samuel A. Stoner in this court for the sum of $
499.52, to bear interest at 10 per cent. per annum, on a
promissory note, given for lumber to be used, and which was
used, in making improvements on said homestead premises. Said
judgment has not been paid nor satisfied, nor any part
thereof."
"CONCLUSIONS
OF LAW.
"1.
The plaintiff is entitled to a judgment against said Samuel
A. Stoner for the sum of $ 500, together with interest
thereon at the rate of 11 per cent. per annum from and after
November 12, 1881, less the sum of $ 39.30 to be applied as a
credit of this date.
"2.
The plaintiff is not entitled to any personal judgment
against the defendant, Nannie E. Stoner.
"3.
The mortgage, as ratified, is valid as to said Samuel A
Stoner and Nannie E. Stoner, and said indebtedness is a lien
upon said lots 1, 2, 3, 4, 5, and 6, in block 1, in
Lancaster, Atchison county, Kansas, prior to the claim of G.
C. Hixon & Co., and Howell, Jewett & Co.
"4.
Said G. C. Hixon & Co. have a valid lien upon said
premises for the sum of $ 81.86, with interest thereon at 7
per cent. per annum from February 16, 1882, which is
subsequent to the lien of the plaintiff and prior to the lien
of said Howell, Jewett & Co.
"5.
Said Howell, Jewett & Co. have a valid lien upon said
premises for the sum of $ 499.52, with interest thereon at
the rate of 10 per cent. per annum from July 6, 1882, which
lien is subsequent to the lien of the plaintiff and
subsequent to the lien of said G. C. Hixon & Co.
"6.
Said premises should be sold by...
