Madaris v. Edwards

• Decision Date: 03 July 1884
• Citation: 4 P. 313,32 Kan. 284
• Parties: W. A. MADARIS v. T. B. EDWARDS, HETTIE MADARIS, AND THE LYNDON SAVINGS BANK
• Court: Kansas Supreme Court

4 P. 313

32 Kan. 284

W. A. MADARIS v. T. B. EDWARDS, HETTIE MADARIS, AND THE LYNDON SAVINGS BANK

Supreme Court of Kansas

July 3, 1884

Error from Osage District Court.

ACTION brought by Edwards against Madaris and wife and The Lyndon Savings Bank, on two negotiable promissory notes, and to foreclose, as against all the defendants, a mortgage given to secure their payment. Trial by the court, at the October Term, 1883, and judgment for plaintiff. The defendant Madaris brings the case here. The material facts are stated in the opinion.

Judgment affirmed.

Peyton Sanders & Peyton, for plaintiff in error.

Ellis Lewis, and Scott & Lynn, for defendant in error Edwards.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J:

On September 20, 1881, Ward Bradford made a contract with J. S. Danford to erect a building for Danford on lot No. 1, block 28, in Lyndon, Osage county, Kansas. On December 15, 1881, Bradford filed in the office of the clerk of the district court of said county a statement for a mechanics' lien on said property, for the sum of $ 1,195, claimed to be due him for the erection of the building. On February 25, 1882, Bradford commenced an action in the district court of said county against Danford and one A. B. Cooper, to foreclose the mechanics' lien. On March 3, 1882, Bradford sold and assigned to Madaris by an instrument in writing all his (Bradford's) "right, title, interest and benefit" in and to the mechanics' lien and in and to said action. On March 4, 1882, Madaris and wife executed to Danford a mortgage on said property, to secure two negotiable promissory notes which had previously been executed by Madaris to Danford, one of which notes was dated February 8, 1882, for $ 1,215, and was due eight months after the date thereof, and the other was dated February 25, 1882, for $ 220, and was due in eight months after its date. The mortgage was filed for record on the same day on which it was executed, and on the same day Danford assigned the notes by indorsement to T. B. Edwards. On March 8, 1882, the assignment by Bradford to Madaris of Bradford's interest in said mechanics' lien and in said action was filed in the district court and in said action. On April 7, 1882, Madaris by order of the court was substituted as the plaintiff in said action in the place of Bradford, and judgment was rendered in favor of Madaris against both Danford and Cooper, for $ 1,195, on the claim for the erection of the building; and the mechanics' lien was foreclosed, and the lot ordered to be sold to satisfy the money judgment. On May 22, 1882, an order of sale was issued on said judgment, and in pursuance thereof the sheriff, on July 1, 1882, sold the property to the Lyndon Savings Bank for $ 825. On July 6, 1882, the sale was confirmed, and on July 7, 1882, the sheriff executed a deed for the property to the Lyndon Savings Bank. On October 23, 1882, the Lyndon Savings Bank, by its president O. C. Williams, and its secretary W. A. Madaris, executed a quitclaim deed for the property to the said W. A. Madaris.

On December 28, 1882, Edwards commenced this present action in the district court of Osage county, against the said W. A. Madaris and wife and the Lyndon Savings Bank, to recover a judgment against Madaris on said notes, and to foreclose the mortgage as against all the defendants. On January 20, 1883, the sheriff's deed to the Lyndon Savings Bank and the quitclaim deed from the Lyndon. Savings Bank to Madaris were filed in the office of the register of deeds for record. On October 13, 1883, this present case was tried before the court without a jury, and on the trial the foregoing facts were proved by the defendant, Madaris, and the evidence of these facts constituted the entire and only evidence introduced in the case. The execution, however, of the promissory notes and the mortgage, and their transfer to the plaintiff, Edwards, as above stated, had previously been admitted by the pleadings. At the close of the evidence the plaintiff, Edwards, demurred thereto, upon the ground that it wholly failed to prove any defense to the plaintiff's cause of action, and the court sustained the demurrer, and rendered judgment in favor of the plaintiff and against the defendant, W. A. Madaris, for the amount of the two promissory notes, to wit, $ 1,725.26; and against all the defendants, foreclosing the mortgage, decreeing it to be a lien on the mortgaged property, and ordering that the mortgaged property be sold to satisfy the said money judgment; to which judgment the defendant, W. A. Madaris, excepted, and filed a motion for a new trial, upon various grounds; which motion the court overruled, and the defendant, W. A. Madaris, again excepted. The defendant, W. A. Madaris, as plaintiff in error, now brings the case to this court, making all the other parties in the case defendants in error. He asks for a reversal of all that portion of the said judgment of the court below which decreed that the mortgage was a lien upon the mortgaged property, and which ordered that the mortgaged property should be sold to satisfy the money judgment. He does not ask that the personal judgment rendered against him for the amount of the promissory notes shall be disturbed.

It will be seen that the whole controversy in this case is between the plaintiff, T. B. Edwards, and the defendant, W. A Madaris, and that the sole question involved in the case is whether the mortgage executed by Madaris and wife to Danford and assigned by Danford to the plaintiff Edwards was a lien upon the mortgaged property at the time when the judgment declaring it to be a lien was rendered in this case, or whether the lien of such mortgage had been totally abrogated, annulled and destroyed by the proceedings had in the action to foreclose the mechanics' lien. That Edwards was bound to take notice of the mechanics' lien and of the...