Johnson v. Harvey

• Decision Date: 10 December 1910
• Docket Number: 16,689
• Parties: VICTOR JOHNSON, Appellee, v. IDA HARVEY et al., Appellants
• Court: Kansas Supreme Court

112 P. 108

83 Kan. 471

VICTOR JOHNSON, Appellee, v. IDA HARVEY et al., Appellants

No. 16,689

Supreme Court of Kansas

December 10, 1910

Decided July, 1910.

Appeal from Leavenworth district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PLEADINGS--Judgment--Defense Not Raised by Answer--Foreclosure of Mortgage. The plaintiff brought an action to foreclose a mortgage which was in the form of a warranty deed. The answer consisted of a general denial, an express admission that the deed was executed for the purpose of securing an extension of a note and mortgage which were canceled and surrendered to the defendants, and further alleged that one of the purposes for which the deed was executed was to enable the mortgagor to avoid the payment of taxes. There was no plea of payment. Held, that the answer stated no defense, and that judgment was rightly awarded on the pleadings.

R. E Melvin, and A. E. Dempsey, for the appellants.

M. A. Gorrill, and Lee Bond, for the appellee.

PORTER J., GRAVES, J., BENSON, J.

OPINION

PORTER, J.:

This action was brought to foreclose a mortgage in the form of a warranty deed. The plaintiff was awarded judgment on the pleadings. The defendants appeal.

It is first contended that the demurrer to the petition should have been sustained because there was no statement showing when the indebtedness matured or what the implied conditions of the mortgage were. We have no difficulty in discovering from the petition that the note was dated August 30, 1902, was due five years thereafter, and that no part of the principal or interest had been paid when the suit was brought, which was long after the note matured by its terms. It is also alleged in the petition that by the terms of the original mortgage the whole sum became due and payable upon the first default in payment of interest, and that the implied conditions of the deed were the same as those contained in the mortgage. The demurrer was properly overruled.

The defendants fall into the error of assuming that because the note and mortgage were canceled and surrendered the indebtedness in some way was satisfied. But the petition alleges, and the answer admits, that the deed was given for the purpose of securing an extension of the debt represented by the note and mortgage. The fact that the plaintiff surrendered the note to the defendants under these circumstances carried no presumption that the note was paid. Besides, there was no plea of payment. The court rightly awarded judgment on the pleadings. The answer...