Johnson v. Moore

• Decision Date: 07 January 1885
• Parties: JOHN P. JOHNSON v. GEORGE W. MOORE, et al
• Court: Kansas Supreme Court

5 P. 406

33 Kan. 90

JOHN P. JOHNSON v. GEORGE W. MOORE, et al

Supreme Court of Kansas

January 7, 1885

Error from Doniphan District Court.

ACTION by Johnson against Moore and wife, upon two promissory notes and to foreclose a mortgage alleged to have been executed by the defendants to secure their payment. Trial at the March Term, 1884, when the jury made special findings of fact, and returned a general verdict assessing the amount of plaintiff's recovery against the defendant, George W Moore, at the sum of $ 728.48, and further finding in favor of both defendants, as to the execution of the mortgage, that they did not execute the same substantially as sued upon. The plaintiff moved for a decree of foreclosure on the special findings and general verdict, which motion was overruled. This ruling plaintiff brings here for review. The opinion contains a sufficient statement of the pleadings proceedings, and material facts.

Judgment affirmed.

Albert Perry, and B. A. Seaver, for plaintiff in error.

W. W. Guthrie, for defendants in error.

OPINION

JOHNSTON, J.:

John P. Johnson brought this action in the district court of Doniphan county, to recover upon two promissory notes executed by George W. Moore, one for $ 745.92, and the other for $ 117.45, both bearing date July 14, 1882, and also to foreclose a mortgage upon a certain tract of land alleged to have been executed by George W. Moore and his wife, Adaline Moore, to secure the payment of the said notes. The plaintiff in his petition alleges that Moore and his wife had for many years been indebted on the mortgaged premises, first, by a mortgage executed by them to Mrs. Patton and Mrs. Plank, dated January 14, 1873, to secure the sum of $ 725; that on December 1, 1877, the defendants, for the purpose of paying off this last-mentioned mortgage, obtained money from Pryor Plank, and executed to him a mortgage upon the same tract of land; that by the error and mutual mistake of the conveyancer and of the parties to the mortgage to Pryor Plank, the description of the land therein conveyed was erroneously described as the east half of the northwest quarter of section No. 6, town 2, range 20, instead of the east half of the southwest quarter of said section, town and range, which they intended to convey and describe in said mortgage, and which they supposed they had described and conveyed; that the mortgage of December 1, 1877, was to secure the payment of the sum of $ 725, the balance remaining due at that date on the former mortgage, and was evidenced by three promissory notes they had executed to Pryor Plank, and bearing interest at the rate of ten per cent. per annum from the date thereof; that from time to time until the 14th day of July, 1882, the defendant Moore paid small sums of money on said notes, and on that day there remained yet due and unpaid thereon the sum of $ 863.37; that to pay off and settle these notes of Pryor Plank, the notes sued on in this action were executed by the defendant G. W. Moore to the plaintiff Johnson, who took up and surrendered to Moore the three notes executed by him to Plank, December 1, 1877, and which were an existing lien upon said Moore's homestead, by virtue of the mortgage at the same time executed and delivered by him and wife to said Plank, and that it was understood and agreed between the parties that the plaintiff Johnson should have and acquire a lien upon said homestead by advancing the said sum of $ 863,37, to pay off and satisfy said Plank notes and mortgage, which amount was due at that time.

The petition further states that the defendant's wife, Mrs. Adaline Moore, claims that after the execution of said mortgage by her to the plaintiff, there were such alterations made in said instrument as to render the same inoperative as to her, which claim the plaintiff denies, and he avers that if there were any such changes or alterations made in the mortgage as to render it inoperative, he is entitled to be subrogated to all the rights of said prior mortgages, and to have the lands sold to pay off the amounts due on such prior notes and mortgages as represented by the new notes given to Johnson, and prays that the mortgage of December 1, 1877, given to Pryor Plank, be reformed so as to correct the error in the description of the land; that his mortgage of July 14, 1882, be foreclosed and the land declared subject to the same, and sold to pay off and satisfy said claim and interest; but if for any reason the last-named mortgage should be held and declared invalid and void, he asks to be subrogated to the rights of Pryor Plank, as mortgagee in the mortgage of December 1, 1877.

Defendants answer separately. Adaline Moore pleads non est factum. She further states that she and her husband, George W. Moore, together with their family, have for many years prior to July 14, 1882, occupied and still are occupying the mortgaged premises as their homestead, and that if the plaintiff in fact holds any such mortgage as he describes in his petition, that the same was never authorized or executed by her; that after she had signed and acknowledged a mortgage of that date for another and different, and for a less consideration, and after it had been delivered to Johnson, that the same was altered and changed by the insertion of an increased consideration, and as security for the said described note of $ 117.45, without her knowledge, consent, or authority, and that she has never since consented thereto, and now repudiates and denies the execution of, and refuses her consent to, said described mortgage so altered and changed, and asks that the mortgage be adjudged null and void and held for naught.

The defendant, George W. Moore, denies the execution of the mortgage described in the petition, and alleges that the tract of land sought to be foreclosed is the homestead of himself and family, and states that the mortgage which plaintiff is seeking to foreclose has been altered and changed by the plaintiff after its execution and delivery to him, by increasing the consideration and by describing therein the additional note of $ 117.45, without his knowledge, authority, or consent. He admits that he signed each of the notes sued on in this action, but alleges that he is entitled to certain credits thereon. He states that the three notes of Pryor Plank, for which the new notes were given, were transferred after maturity to John P Johnson, who claimed to this defendant that he was the innocent purchaser, and as such entitled to have and claim the sum then appearing to be due upon the face of the notes without any regard to set-offs or credits which the defendant might be entitled to on that account, in the hands of Pryor Plank, and then represented to the defendant that the amount due up to July 1, 1882, was $ 745.92, and that unless paid, suit would be brought; and on account of having no knowledge of plaintiff's rights, and relying upon his representations, George W. Moore says he consented to execute his note to the plaintiff for said amount on one year's time and secure the same by a mortgage upon their homestead, which mortgage was duly executed, acknowledged, and with the note delivered to the plaintiff, and the plaintiff surrendered to this defendant the old notes as full satisfaction, and then, in part consideration therefor, promised and agreed with the defendant that any credit which Pryor Plank would admit or defendant should establish against him should be credited on such new note; that afterward the plaintiff contended that the old notes in fact amounted to $ 117.45 more than was included in the first note; that there was an error to that extent, and...