Mutual Benefit Life Ins. Co. v. Huntington
| Decision Date | 06 March 1897 |
| Citation | 48 P. 19,57 Kan. 744 |
| Parties | MUTUAL BENEFIT LIFE INS. CO. et al. v. HUNTINGTON. |
| Court | Kansas Supreme Court |
1. The assignment and delivery of a negotiable promissory note before maturity operates as an assignment of a mortgage given as security for the payment of the note. After such transfer the original mortgagee has no power to release or discharge the lien of the mortgage, and a release made by him without authority will not affect the rights of the assignee.
2. An assignee of a duly-recorded mortgage is authorized to discharge the same by an entry on the margin of the record acknowledging satisfaction of the mortgage signed by himself in the presence of the register of deeds or his deputy, who shall subscribe the same as a witness. When an entry is so made, subsequent mortgagees must take notice thereof.
3. Permanent improvements upon mortgaged land, which become a part of the realty, whether placed there by the mortgagor or one claiming under him, inure to the benefit of the mortgagee, and subsequent mortgagees can only claim the surplus, if any remains, after the first mortgage lien is satisfied.
Error from district court, Bourbon county; J. S. West, Judge.
Action by Calvin Huntington against the Mutual Benefit Life Insurance Company and others to foreclose a mortgage. From the decree rendered, defendants and plaintiff respectively bring error and cross error. Modified.
H. G Webb and Clinton C. Caldwell, for plaintiffs in error.
E. F Ware and W. H. Thompson, for defendant in error.
JOHNSTON, J. (after stating the facts).
The release executed by some of the payees of the Hill note was ineffectual. It was executed more than six years after the note and mortgage had been transferred by them to Huntington and when they had no ownership in either the note or mortgage. During this period Huntington held and owned the note, and had given evidence of his ownership of the mortgage by a number of releases, which had been duly entered on the public records. The note was negotiable, and it is well settled that where such a note is secured by a mortgage the note is the principal and the mortgage is the incident, and that an assignment of the note is an assignment of the mortgage. No obligation rested upon Huntington to record his assignment in order to protect himself against the subsequent mortgagee. As the mortgage was given to secure a negotiable note, it could be assigned by the mere indorsement or delivery of the note, and there was in fact no assignment to record. It has been expressly held that the bona fide holder of negotiable paper, transferred to him by indorsement thereon before maturity, and secured by a real-estate mortgage, need not record...
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FV-I, Inc. v. Kallevig, 111,235
...its character from the instrument which evidences the debt.’ " 111 Kan. at 208 ?.Further, the Middlekauff court quoted Insurance Co. v. Huntington, 57 Kan. 744, Syl. ¶ 1, 48 P. 19 (1897) : " ‘The assignment and delivery of a negotiable promissory note before maturity operates as an assignme......
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... ... Hocker, 34 Okl. 676, ... 128 P. 725; Mutual Benefit Life Ins. Co. v ... Huntington, 57 Kan. 744, 48 ... ...
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Sanders v. Park Towne, Ltd.
...the subordination agreement was an assignment, Park Towne had no power to release the mortgage and note. See, Insurance Co. v. Huntington, 57 Kan. 744, 747-748, 48 P. 19 (1897). By this process the court reached the conclusion that the land in Carlsberg's hands can be subjected to plaintiff......
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Layton v. Byrd
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