Kuhn v. National Bank of Holton

• Decision Date: 06 October 1906
• Citation: 74 Kan. 456,87 P. 551
• Parties: KUHN v. NATIONAL BANK OF HOLTON et al.
• Court: Kansas Supreme Court

87 P. 551

74 Kan. 456

KUHN v. NATIONAL BANK OF HOLTON et al.

Supreme Court of Kansas

October 6, 1906

Rehearing Denied Nov. 22, 1906.

Syllabus

Where one who has no interest in, or lien upon, a tract of land buys the land, which is incumbered by three mortgages and two judgments of record, and, as a part of the purchase price assumes and agrees to pay the mortgages and afterwards does pay one of them; such purchaser is not entitled to an injunction to prevent a sheriff’s sale of the land, which has been advertised under executions issued upon such judgments, to be made subject only to the two unpaid mortgages.

In such case the purchaser is not entitled to have the paid mortgage, which has been released of record, revived for his protection, nor is he entitled to be subrogated to the rights of the mortgagee thereunder, and it is quite immaterial whether he had actual knowledge of the existence of the judgments at the time of his purchase or at the time of paying the mortgage. He is conclusively presumed to know what the proper records of the county disclose, which, by statute, are made constructive notice to all.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 958-960.]

In such case the purchaser takes the legal title to the land subject to all liens which are properly of record, and subject also to other liens of which he has actual notice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 474, 513.]

Error from District Court, Jackson County; C. F. Hurrel, Judge.

Action by W. D. Kuhn against the National Bank of Holton and E. S. Bateman. Judgment for defendants, and plaintiff brings error. Affirmed.

Kuhn, the plaintiff in error, having at the time no interest whatever in, or lien upon, the land, purchased a tract of land which was incumbered by three mortgages. At the time of the purchase, and for some time prior thereto, abstracts of two judgments rendered by a justice of the peace against Kuhn’s grantor and in favor of the National Bank of Holton, had been on file in the district court of Jackson county, in which the land was located, and such judgments were liens upon the land in question. By his contract of purchase Kuhn assumed, and agreed to pay, the mortgages against the land, and all unpaid taxes thereon. Subsequently Kuhn paid one of the mortgages, procuring the money therefor principally by a loan which he secured by executing a new mortgage on the land. Subsequently Kuhn also paid the mortgage given by him to secure the loan, leaving only the two mortgages which he had assumed to pay and the two judgments as liens upon the land. Thereafter the National Bank of Holton, the owner of the two judgments, caused execution to be issued thereon, and the sheriff of said county, not finding goods or chattels of the judgment debtor to satisfy the executions, levied the same upon the land in question, and advertised the same for sale, subject only to the two unpaid mortgages, to pay said judgments. Thereupon Kuhn brought this action in the district court of Jackson county to enjoin the bank and the sheriff from proceeding with said sale. A temporary injunction was granted during the pendency of the action, and in due time a trial was had before the court without a jury, and the temporary injunction was dissolved, a permanent injunction was refused, and judgment was rendered against the plaintiff. The plaintiff, Kuhn, brings the case here for review.

Hursh & Walton and John D. Myers, for plaintiff in error.

Hayden & Hayden, for defendants in error.

OPINION

SMITH, J.

Two objections to the action of the court in this case are presented: (1) The exclusion of evidence offered to show that the plaintiff had no actual knowledge of the existence of the judgments or judgment liens on the land at the time he purchased it. (2) That, upon the facts, not the defendants, but the plaintiff was entitled to judgment.

If, as it has uniformly been decided, a purchaser of either real or personal property is bound to take notice of the facts affecting the title to the property, which the records of the county show, and which records the statutes provide shall be public notice, then it is quite immaterial whether or not Kuhn had actual knowledge of the existence of the judgments. In the absence of conduct on the part of the person, who afterwards asserts the facts shown by the records to the prejudice of the purchaser, which prevents an examination of the records, or induces the purchaser not to make such examination, it is negligence for a purchaser of either...