Perkins v. Matteson

• Decision Date: 10 November 1888
• Citation: 19 P. 633,40 Kan. 165
• Parties: F. M. PERKINS v. J. D. MATTESON
• Court: Kansas Supreme Court

19 P. 633

40 Kan. 165

F. M. PERKINS v. J. D. MATTESON

Supreme Court of Kansas

November 10, 1888

Error from Phillips District Court.

THIS was an action brought in the district court of Phillips county by J. D. Matteson, under § 8 of the act relating to mortgages, against F. M. Perkins, to recover $ 100 for the alleged failure on the part of Perkins, on demand, to enter or cause to be entered of record the satisfaction of a certain mortgage, previously executed by Matteson and wife to Perkins, and recorded in the office of the register of deeds of Phillips county, and paid. At the March term, 1887, the case was tried before the court without a jury, and the court made the following findings of fact:

"1. On September 1, 1881, plaintiff and wife executed and delivered to defendant their negotiable promissory note, with coupons attached for $ 400, and to secure the same made the mortgage mentioned in the pleadings on land situated in Phillips county.

"2. On the 13th day of December, 1881, the defendant assigned the note and mortgage to Ebenezer Hunt, who continued to be the owner thereof until the same was paid by the plaintiff on July 22, 1886. All installments of interest, and the principal of said note were paid to the Western Farm Mortgage Company, of which defendant was president. The assignment was not recorded at the date of the commencement of this action and plaintiff had no knowledge of said assignment but paid the various amounts due on such notes as though defendant was the owner thereof.

"3. On July 22, 1886, when plaintiff paid the principal and interest due on said note, he demanded of said defendant a release of said mortgage, and again on September 23, 1886 and before bringing suit, demanded in writing that he release said mortgage of record, which demand defendant failed and neglected to do within a reasonable time after demand."

Upon these findings of fact and the pleadings and evidence in the case, the court below rendered judgment in favor of the plaintiff and against the defendant for $ 100 and interest and costs of suit; and to reverse this judgment the defendant, as plaintiff in error, brings the case to this court.

Judgment affirmed.

Pratt & Lewis, for plaintiff in error; Owen A. Bassett, of counsel.

G. A. Spaulding & Co., for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

We think the findings of fact made by the trial court in this case are sufficiently sustained by the evidence, although it may be that with respect to some of such findings, there may have been some slight evidence against them. The only substantial question in the case is simply whether the findings and the pleadings are sufficient to sustain the judgment. We think this question must be answered in the affirmative. The defendant, F. M. Perkins, was the mortgagee as well as the payee of the note, whatever may have been his real interest therein; and these notes and this mortgage were wholly paid and satisfied, and a demand made for the release of the mortgage, and all this long before this action was commenced. And during all this time, and at the time when this action was commenced and afterward, the records of Phillips county apparently showed that the defendant, Perkins, was the owner and holder of the notes and mortgage, and the plaintiff, Matteson, had no knowledge of anything to the contrary, or at most he had no knowledge that the notes and mortgage had ever been assigned or transferred to Hunt. Section 8 of the act relating to mortgages, and the one under which this action was commenced, reads as follows:

"SEC. 8. When any mortgage of real property shall have been satisfied, it shall be the duty of the mortgagee or his assignee immediately on demand of the mortgagor to enter satisfaction, or cause satisfaction of such mortgage to be entered of record; and any mortgagee, or assignee of such mortgagee, who shall neglect or refuse to enter satisfaction of such mortgage, as is provided by this act, shall be liable in damages to such mortgagor or his grantee or heirs in the sum of $ 100, to be recovered in a...