Perry v. Horack

• Decision Date: 11 May 1901
• Docket Number: 12,178
• Citation: 64 P. 990,63 Kan. 88
• Parties: CORNELIUS PERRY v. NETTIE HORACK, as Administratrix, etc
• Court: Kansas Supreme Court

64 P. 990

63 Kan. 88

CORNELIUS PERRY v. NETTIE HORACK, as Administratrix, etc

No. 12,178

Supreme Court of Kansas

May 11, 1901

Decided January, 1901.

Error from Sumner district court; J. A. BURNETTE, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

NOTE AND MORTGAGE. -- Homestead -- Limitation of Action. A mortgage upon a homestead was executed by the father and mother of minor children to secure a note which they had given. Before the note matured the father died intestate, and the mother and children continued to occupy the homestead. With the products of the homestead the mother made payments on the note and kept it alive. No guardian was appointed for the children and no payments on the note were expressly made for them. An action of foreclosure was brought more than five years after the maturity of the note, and the minor children claimed that the mortgage was barred as to them and not enforceable as against the undivided one-half of the mortgaged land which they had inherited. Held that, the debt having been kept alive, the mortgage executed to secure its payment may be foreclosed against the whole of the land.

James T. Herrick, for plaintiff in error.

Ivan D. Rogers, for defendant in error.

JOHNSTON, J. CUNNINGHAM, GREENE, JJ., concurring.

OPINION

JOHNSTON, J.:

This was an action by Cornelius Perry to recover upon a promissory note for $ 1000, executed by Frank J. Horack and his wife, Nettie Horack, and also to foreclose a mortgage given as security for the note on a farm occupied by the Horacks as a homestead. The note and mortgage were executed on March 1, 1884, and they matured March 1, 1889. After making a number of small payments, and on January 6, 1888, Frank J. Horack died, intestate, leaving as his only heirs Nettie Horack, his widow, and three children, the oldest of whom was then eight years of age and the youngest three years. The family have occupied the homestead since his death, and Nettie Horack has made payments on the debt from time to time, the last of which was on October 11, 1894. She represented to Perry that she intended to pay the debt and save the land for herself and the children. The money with which the payments were made was derived from the sale of stock, grain and produce raised by her upon the mortgaged premises, the children rendering such assistance as children of their ages are usually able to render. Mrs. Horack was appointed administratrix of the estate, but was not made the legal guardian of the children, nor was any such guardian appointed for them. The estate left by Frank J. Horack, other than the farm, was insufficient to pay funeral and administration expenses, and the note and mortgage were therefore never exhibited as a demand against the estate.

This action was brought November 26, 1895, a little more than a year after the last payment was made on the note and mortgage, and Mrs. Horack and the three children were made defendants. The children contended that as no payment had been made expressly for them and as more than five years had elapsed since the maturity of the note, the action was barred as to them and to their interest in the land. The trial court gave judgment against Nettie Horack for the amount due and decreed a foreclosure of the mortgage on an undivided half of the farm, but held that the action was barred as to the children, and refused a foreclosure of the mortgage as against the entire premises.

Was the plaintiff entitled to have his mortgage enforced against all of the mortgaged land? The payments by Mrs. Horack certainly kept the note alive, and the general rule is that the mortgage lives as long as the note it was given to secure. The minors were not parties to the note and mortgage, but they inherited the land subject to the lien of the mortgage. It is contended that the...