R. L. McDonald & Co. v. Kellogg
| Decision Date | 01 July 1883 |
| Citation | 2 P. 507,30 Kan. 170 |
| Court | Kansas Supreme Court |
| Parties | R. L. MCDONALD & CO. v. C. M. KELLOGG, Trustee, &c., et al |
Error from Clay District Court.
ACTION by R. L. McDonald & Co. against C. M. Kellogg, as trustee, &c., and numerous other defendants, to foreclose a deed of trust. January 12, 1883, the district court sustained Kellogg's demurrer to the petition, and gave him judgment for costs against plaintiffs. They bring the case here.
Judgment reversed and cause remanded.
Miller & Blake, for plaintiffs in error.
Anthony & Kellogg, for defendants in error.
OPINION
This was an action brought by the plaintiffs in error against the defendants in error, to foreclose a deed of trust. One of the defendants, to wit, C. M. Kellogg, demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer. The plaintiffs below, as plaintiffs in error now bring the case to this court for review.
The deed of trust appears upon its face to be an absolute conveyance by A. F. Graham and wife to C. M. Kellogg, as trustee, with power to Kellogg to sell the property and pay certain debts owing by the said Graham to the plaintiffs and to other persons who are parties to this action; but the petition alleges that this deed of trust was really given as security for the payment of such debts. Now supposing the allegations of the petition to be true--and upon demurrer we are required to do so--then the deed of trust to Kellogg was in fact a mortgage. Every deed of conveyance in this state whether absolute or conditional, and whether made to a trustee, or not, if made for the purpose of securing a debt, and for that purpose only, is a mortgage, and can be enforced only by an action in a court of competent jurisdiction. Section 399 of the civil code provides, among other things, as follows:
In the following cases it is held that a deed...
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Sanders v. Hall
...a judicial proceeding for foreclosure, and not by power of sale. St. Okl. 1931, § 424; Rev. St. Kan. 1923, 60 — 3107; McDonald v. Kellogg and Graham, 30 Kan. 170, 2 P. 507. In those jurisdictions where the common law doctrine of mortgages has been abrogated and the equitable theory of mortg......
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Wilkins v. U.S. Bank, Nat. Ass'n.
...of the debt secured." Neikirk v. Boulder Nat. Bank, 53 Colo. 350, 353-354, 127 P. 137, 139 (Colo.1912). See also McDonald v. Graham, 30 Kan. 170, 2 P. 507 (Kan. 1883); Smith v. Empire Lumber Co., 57 Ark. 222, 21 S.W. 225 Based upon the presence of the defeasance clause, it is apparent a tru......
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Brown v. Bryan
...68; Grover v. Fox, 36 Mich. 461; Lee v. Mason, 10 Mich. 403; Sanford v. Flint, 24 Mich. 26; Mowry v. Sanborn, 68 N.Y. 160; McDonald v. Kellogg, 30 Kan. 170, 2 P. 507.) many other states they have held that any contract contained in the same instrument by which the money is borrowed to short......
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Berger v. Bierschbach
...the deed is to be considered an equitable mortgage rather than an absolute conveyance. (Moore v. Wade, 8 Kan. 380; McDonald & Co. v. Kellogg, Trustee, 30 Kan. 170, 2 P. 507; Hegwood v. Leeper, 100 kan. 379, 164 P. 173; Carroll v. Naffziger, 157 Kan. 482, 142 P.2d 818.) Where the circumstanc......