Munsell v. Beals
| Decision Date | 01 December 1897 |
| Docket Number | 177 |
| Citation | 46 P. 984,5 Kan.App. 736 |
| Parties | WM. W. MUNSELL v. C. L. BEALS, Executor, et al |
| Court | Kansas Court of Appeals |
Opinion Filed December 1, 1897.
Error from Ford District Court. Hon. A. J. Abbott, Judge. Reversed.
This was a suit on a promissory note secured by a real-estate mortgage, both made by Perry Wilden and wife to Bowman, and by him assigned to the defendant in error, plaintiff below. The mortgaged property consisted of several lots in Dodge City, Kan. Younger and wife deeded a part of this property and some other property to Munsell, plaintiff in error defendant below. In the deed was this clause: "Together with the appurtenances thereto belonging, on which there is a mortgage of $ 625, the payment of which is assumed by William Munsell." Upon this clause defendant in error founds his claim for judgment against the plaintiff in error. The other facts are stated in the opinion.
Judgment reversed and case remanded.
Sutton & McGarry, for plaintiff in error.
Wheeler & Switzer, for defendant in error.
We are met at the threshold of this case by a motion of the defendant in error to dismiss the action, for the reason that the parties to be affected by a reversal of the judgment are not all before the court. From a careful examination we are satisfied that the parties to be affected by a reversal of this case are all before the court. It is true that a personal judgment was rendered against Perry Wilden, but the court had acquired no jurisdiction over him so as to render a personal judgment, and the personal judgment so far as Perry Wilden is concerned is a nullity. Therefore the motion of the defendant in error to dismiss this action is overruled. This brings us to the consideration of the question as to whether William W. Munsell had assumed and agreed to pay the mortgage of the plaintiff below. The record shows that the lands conveyed by Younger and wife to Munsell were only a part of the same property mortgaged by Wilden and wife to the plaintiff below. The purported deed describes other land than the land mortgaged, and contains this statement: "Together with the appurtenances thereto belonging, on which there is a mortgage of $ 625." It nowhere specifies that Munsell agreed to pay the mortgage executed by Anna L. Wilden and Perry Wilden to the assignor of the plaintiff below. It does not describe or pretend to...
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