McFall v. Murray

• Decision Date: 01 September 1896
• Docket Number: 77
• Citation: 45 P. 1100,4 Kan.App. 554
• Parties: JOHN D. MCFALL et al. v. ROBERT W. MURRAY
• Court: Kansas Court of Appeals

45 P. 1100

4 Kan.App. 554

JOHN D. MCFALL et al. v. ROBERT W. MURRAY

No. 77

Court of Appeals of Kansas, Southern Department, Western Division

September 1, 1896

Opinion Filed September 3, 1896.

MEMORANDUM.-- Error from Finney district court; A. J. ABBOTT judge. Action by Robert W. Murray against John D. and Mary C McFall to foreclose a mortgage. Judgment for plaintiff. Defendants bring the case to this court. Affirmed. The opinion herein, filed September 3, 1896, states the material facts.

Judgment affirmed.

S. J. Ramsey, for plaintiffs in error.

Beardsley, Gregory & Flannelly, for defendant in error.

JOHNSON P. J. All the Judges concurring.

OPINION

JOHNSON, P. J.:

Robert W. Murray commenced this suit in the district court of Finney county, Kansas, on a promissory note executed by John D. McFall and Mary C. McFall to the Jarvis-Conklin Mortgage Trust Company for $ 500, bearing date July 1, 1887, due in five years from date, with interest coupons attached, payable semiannually; the note was secured by a mortgage on the southwest quarter of section 9, township 22, range 31, in Finney county, Kansas.

Before the maturity of the note or coupons thereto attached, the plaintiff below, Robert W. Murray, for a valuable consideration, purchased said note and mortgage, and the same were duly assigned and transferred to him by the Jarvis-Conklin Mortgage Trust Company, and he is the legal owner and holder of the note, coupons, and mortgage. Said note and mortgage have a stipulation contained therein that, in case either principal or interest remain unpaid 10 days after due, at the option of the legal holder, the whole principal and interest may be declared immediately due and payable. John D. McFall and Mary C. Mc-Fall failed and neglected to pay the second and third interest coupons when they became due and payable, and failed for more than 10 days after they were due to pay the same. Robert W. Murray, the legal holder and owner of the note and mortgage, declared the whole amount of principal and interest of said promissory note due, and commenced this suit to recover the principal and interest due on said note, and for a decree of foreclosure of said mortgage and an order for the sale of the mortgaged premises to pay the sum of money for which it was given to secure.

In answer to the petition of the plaintiff below, John D. McFall and Mary C. McFall admitted the execution and delivery of the note, coupons, and mortgage, as set out and claimed by the plaintiff below, but alleged that the promissory note, coupons and said pretended mortgage were executed in pursuance of a contract entered into by and between them and the Jarvis-Conklin Mortgage Trust Company for that purpose long prior to the date of said note, coupon notes, and pretended mortgage, to wit, prior to the 1st day of July, 1887; that the title to the real estate set out and described in the petition of plaintiff below was at the time of contracting said debt, and at the time of execution of said note, coupons, and pretended mortgage, and along time thereafter, in the United States government, and that neither they, nor either of them, had any title thereto, nor had they, or either of them, any conveyable interest therein; that at the time of the execution of said note, coupon notes and mortgage by them as aforesaid said real estate was the homestead claim of the said John D. McFall, under and by virtue of the United States homestead law; that said defendant John D. McFall made final proof of settlement, residence and qualification entitling him to a patent on the 5th day of December, 1887, and not before that time -- a period of time long after the time of the execution of said note, coupon notes, and the mortgage, and they ask judgment against Murray that said mortgage be set aside, canceled, and held for naught.

In reply to this answer the plaintiff below says, that the note, coupon notes and mortgage were executed and delivered to the mortgagee after the affidavit of final proof showing that the compliance of John D. McFall with the requirements of the United States statutes had been made and sworn to by him, and that the note and mortgage were executed for the purpose of obtaining money to pay the United States government the purchase-price of the land conveyed by said McFall, and for the further purpose of stocking and improving said land, and that the proceeds of said loan were actually so applied; and alleges further, that after the issuance of the final receipt for the purchase-price of said land, and after the issuance of certificates of purchase by the United States land office, John D. McFall and Mary C. McFall executed and delivered, for a valuable consideration, to the said Jarvis-Conklin Mortgage Trust Company a deed of ratification confirming and ratifying the mortgage loan sought to be foreclosed, and sets out a copy of the deed of ratification, dated on the 29th day of December, 1887, and duly acknowledged before a notary public of Finney county, Kansas.

Upon the foregoing issues this case was tried before the court without a jury, and the court made special findings of fact and conclusions of law therein. The Court finds upon the evidence that the note and mortgage were actually executed on the 30th day of November, 1887, and after the date of the final affidavit of John D. McFall in his proof to the United States land-office concerning entry, settlement and residence on the southwest quarter of section 9, township 22, range 31, in Finney county, Kansas; also finds that the proof of settlement and residence was made on the 26th day of September, 1887; and finds further, that John D. McFall made his final affidavit of right to commute, under section 2301 of the Revised Statutes of the United States, on the 16th day of November, 1887; that payment of the money to the United States government was made on the 5th day of December, 1887, and that the final certificate for the entry of said land by commutation was issued December 5, 1887.

As conclusions of law upon said findings of fact, the court concluded that the plaintiff below was entitled to recover the amount claimed in his petition on the note and mortgage, and rendered judgment for the plaintiff below for the amount due on the note and coupon notes, and also rendered decree of foreclosure foreclosing the mortgage and ordering a sale of the mortgaged premises. To the findings of fact and conclusions of law and judgment of the court the McFalls duly excepted, filed motion for new trial, which was overruled and exceptions taken, and now bring the case here and ask for a reversal of the judgment of the district court.

The plaintiffs in error specify eight separate errors in their brief and ask the consideration of the court thereon. We will consider so much of the assignments as we deem material to a complete determination of this case. It is insisted that the note and mortgage bear date of July 1, 1887, and the plaintiff below in his petition alleges that they were executed on that date, and the defendants below in their answer admit that they were executed and delivered as alleged, and then allege that at the date of their execution they were not the owners of the land mortgaged and had no mortgageable...