Rogers v. Coates

• Decision Date: 07 January 1888
• Citation: 38 Kan. 232,16 P. 463
• Parties: A. H. ROGERS v. KERSEY COATES
• Court: Kansas Supreme Court

16 P. 463

38 Kan. 232

A. H. ROGERS v. KERSEY COATES

Supreme Court of Kansas

January 7, 1888

Error from Wyandotte District Court.

EJECTMENT by Coates against Rogers. Judgment for plaintiff, at the July Term, 1885. The defendant brings the case here. The opinion states the facts.

Judgment affirmed.

Nathan Cree, for plaintiff in error.

H. L Alden, and A. Smith Devenney, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT, C.:

The defendant in error brought this action against A. H. Rogers, to recover possession of lot number 243 on James street, Kansas City, Kansas. The plaintiff claimed title as assignee of the Mastin Bank of Kansas City, Missouri; the defendant claimed title under a tax deed. Judgment was rendered for the plaintiff for the possession of the lot, subject to the payment by the plaintiff of the amount of $ 152.09, a lien for taxes upon the premises.

Plaintiff in error says that the petition does not state a cause of action; that there was not sufficient evidence introduced to sustain one, and that the deed from the Mastin Bank to plaintiff was not competent evidence in the case. He claims that because the Mastin Bank was incorporated under the laws of the state of Missouri, and doing business in that state the petition must have averred and the evidence shown that the bank had the power under the statutes of that state to make assignments of real estate for the benefit of its creditors, and that it was necessary to aver and prove that such assignment had been duly recorded, as provided by § 1, ch. 6, Comp. Laws of 1879. His brief is elaborate, and probably his claim is correct in regard to the law of assignments, but we think he is concluded by the pleadings in this case. The plaintiff avers that he is the duly-qualified and acting assignee of the Mastin Bank, and that averment is not denied under oath by the defendant. We believe that averment to mean that all necessary steps have been taken by plaintiff under the laws of Kansas to authorize him in a court of Kansas to bring his action as an assignee of the Mastin Bank of Kansas City, Missouri. There is no evidence whatever in regard to the assignment, nor was there any evidence offered of the laws of Missouri concerning assignments for the benefit of creditors. In the absence of such testimony, it is to be presumed that the laws of Missouri are similar to our own; and it is to be presumed under such averment, that the necessary steps to make the assignment...