Shanks v. Louthan

• Decision Date: 12 January 1909
• Docket Number: 15,800
• Citation: 79 Kan. 363,99 P. 613
• Parties: THOMAS SHANKS et al. v. JOHN LOUTHAN et al
• Court: Kansas Supreme Court

99 P. 613

79 Kan. 363

THOMAS SHANKS et al. v. JOHN LOUTHAN et al

No. 15,800

Supreme Court of Kansas

January 12, 1909

Decided January, 1909.

Error from Mitchell district court; RICHARD M. PICKLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

LIMITATION OF ACTIONS--Tolling the Statute--Indorsement of Rents on Note by Mortgagee in Possession. When a mortgagee in possession of the mortgaged real estate by tenant applies the rents received thereon to the payment of taxes and for repairs, and indorses the balance as payments upon the note secured by the mortgage, with the mortgagor's knowledge but without any direction to do so or other authority than such as may be implied from these facts, such indorsements do not remove the bar of the statute of limitations in an action to collect the mortgage debt.

Frank T. Burnham, and George W. Dashiell, for plaintiffs in error.

F. J Knight, C. L. Kagey, and R. M. Anderson, for defendants in error.

OPINION

BENSON, J.:

The petition in this suit was upon a promissory note and mortgage, praying for a foreclosure. The note is dated October 1, 1885, and bears the indorsements of several small sums from May 31, 1897, to April 19, 1899, inclusive.

The answer averred that such indorsements were falsely and fraudulently entered by plaintiffs, and that such payments were never made, and pleaded the five-year statute of limitation.

The reply alleged the following facts: That in 1889 defendants Louthan and wife, who made the note and mortgage, departed from this state and were continually absent until October, 1893; that from the date of the note and mortgage until 1894, after their return to the state, they were in possession of the premises by themselves or tenants; that during the year 1894 they abandoned the premises, which were deteriorating in value, and the security was being impaired; that in order to protect themselves from a total loss the plaintiffs, while Louthan and wife were residing in the village where the premises were situated, took possession of and rented the property, and, after paying taxes and making necessary repairs, credited upon the note the proceeds of such rentals, with the knowledge of Louthan and wife, who again left the state in the early part of 1898, and ever since have been absent therefrom; that about April, 1901, defendants Main and wife, claiming to be agents for the Louthans, took possession of, and still hold, the premises.

The defendants demurred to the reply, and the demurrer was sustained. The plaintiffs allege error in this ruling.

The note fell due October 1, 1886. Deducting the period of their absence from the state, as alleged in the reply, the makers of the note were still in the state at least five years and ten months before the first payment was indorsed, May 31 1897, and more than six years and five...