Investment Securities Company v. Bergthold

• Decision Date: 07 October 1899
• Docket Number: 11313
• Citation: 60 Kan. 813,58 P. 469
• Parties: INVESTMENT SECURITIES COMPANY v. HENRY BERGTHOLD et al
• Court: Kansas Supreme Court

58 P. 469

60 Kan. 813

INVESTMENT SECURITIES COMPANY v. HENRY BERGTHOLD et al

No. 11313

Supreme Court of Kansas

October 7, 1899

Decided July, 1899.

Error from Marion district court; O. L. MOORE, judge.

STATEMENT.

THIS action was commenced in the court below on September 21 1897, against Henry Bergthold and wife, E. M. Donaldson, J L. Hosmer, The Iowa Cattle Company, R. L. King, and others to foreclose a mortgage executed July 1, 1886, by Bergthold and life to the Jarvis-Conklin Mortgage Trust Company to secure a note for $ 2200, due five years from date, with interest at seven per cent. per annum. The mortgage covered 160 acres of land in Marion county, and was duly recorded. On March 12, 1888, the Jarvis-Conklin Mortgage Trust Company mortgagee and payee of the note, by a writing duly executed assigned said mortgage to the Mercantile Trust Company of New York. On October 12, 1894, the latter company assigned in writing the said mortgage to the North American Trust Company. On August 24, 1897, the North American Trust Company, by an instrument in writing, assigned the note and mortgage sued on to the plaintiff below. Each of these assignments was filed for record in the office of the register of deeds of Marion county and recorded March 14, 1888, August 31, 1896, and August 27, 1897, respectively.

The first cause of action contained in the petition was against Bergthold and wife as makers of the note and mortgage, praying judgment on the one and foreclosure of the other. For a second cause of action the petition alleged that on October 1, 1888, Bergthold and wife conveyed the property to defendants E. M. Donaldson and J. L. Hosmer, and that in the deed said grantees assumed and agreed to pay the principal and interest due on said note. For a third cause of action, it was alleged that the Iowa Cattle Company, a corporation, on or about May 6, 1891, then being the owner of the mortgaged land, for the purpose of securing an extension of five years from May 1, 1891, for the payment of said note, executed and delivered to Jarvis, Conklin & Co. its certain extension agreement, with coupons attached, whereby it agreed to pay the interest falling due on said principal sum semiannually at the rate of six per cent. per annum; and that default had been made by said Iowa Cattle Company in its failure to pay interest since January, 1893. Personal judgment was prayed for against Bergthold and wife, E. M. Donaldson, J. L. Hosmer, and the Iowa Cattle Company. Several judgment creditors and R. L. King were made defendants, with an allegation that they claimed some title to or lien on the land, which was inferior, junior and subject to the mortgage of plaintiff below. R. L. King was the only defendant appearing. He filed an answer admitting that he had an interest in and claimed to own the real estate in controversy, and that his interest was derived from two good and sufficient deeds, one from E. M. Donaldson and wife, and another from J. S. Dean, both for a valuable consideration; that the Iowa Cattle Company never had any interest, estate or title to the real estate; that the note and mortgage set out in the petition became due and payable more than five years before the commencement of this action, and that said action was barred by the statute of limitations.

The plaintiff below filed the following reply to this answer of the defendant King:

"Comes now the above-named plaintiff, and, for reply to both the first and second grounds of defense in the answer of defendant R. L. King filed herein, denies each and every material allegation of new matter therein contained, except that plaintiff admits that said indebtedness has been due more than five years, but plaintiff alleges that the defendants E. M. Donaldson and J. L. Hosmer have been non-residents of the state of Kansas since the 22d day of August, 1893, and that plaintiff during all the time since said date has been unable to secure service of summons on said defendants, or either of them, and asks for judgment as prayed in plaintiff's petition filed herein."

On the issue thus made the cause was tried by the court. The evidence showed conveyances in addition to the mortgage as follows: October 1, 1888, Henry Bergthold and wife to E. M. Donaldson and J. L. Hosmer, in which the grantees assume and agree to pay the mortgage of $ 2200 to Jarvis-Conklin Mortgage Trust Company; November 6, 1890, E. M. Donaldson, trustee for the Iowa Cattle Company, with power to sell the real estate and apply the proceeds to indebtedness of the cestui que trust; March 10, 1891, J. L. Hosmer and wife to E. M. Donaldson, trustee of the Iowa Cattle Company; October 29, 1891, E. M. Donaldson, as trustee of the Iowa Cattle Company, to E. M. Donaldson; August 4, 1893, E. M. Donaldson and wife to J. S. Dean, in trust to pay certain debts, with power in the trustee to convey; March 20, 1896, J. S. Dean, trustee, to R. L. King; May 22, 1896, E. M. Donaldson and wife to R. L. King.

The court found...