Sheldon v. Pruessner

• Decision Date: 06 January 1894
• Citation: 35 P. 201,52 Kan. 579
• Parties: JOSEPH L. SHELDON et al. v. SIMON PRUESSNER et al
• Court: Kansas Supreme Court

35 P. 201

52 Kan. 579

JOSEPH L. SHELDON et al. v. SIMON PRUESSNER et al

Supreme Court of Kansas

January 6, 1894

Error from Shawnee Circuit Court.

THIS action was brought in the circuit court of Shawnee county by Simon Pruessner against Joseph L. Sheldon and others, May 5 1891, to foreclose a mortgage given by Joseph L. Sheldon and wife to Henry S. Pruessner, to secure the sum of $ 1,700, and interest. Afterward Lewis M. Motter filed his answer, setting up and claiming a mortgage of $ 1,000, given by Henry S Pruessner and wife, as a prior lien upon the lands and tenements described in plaintiff's mortgage, being the northwest quarter of the southwest quarter of section 16 town 12, range 16, in Shawnee county. Joseph L. Sheldon and his wife, Lizzie S. Sheldon, filed separate answers to the plaintiff's petition, and also filed separate replies to the answer of their codefendant, Lewis M. Motter. The case was tried on the 5th of December, 1891, and judgment rendered for Simon Pruessner for $ 1,700, and interest at 7 per cent per annum, and his mortgage foreclosed, and adjudged to be a second lien upon the premises described. Judgment was also rendered in favor of Lewis M. Motter against Henry S. Pruessner and wife for the sum of $ 1,000, and interest at 12 per cent. per annum from date of default, which sum was adjudged to be a first lien upon the same premises. Joseph L. Sheldon and his wife, Lizzie S. Sheldon, bring the case to this court.

Judgment set aside and cause remanded.

H. C. Root, for plaintiff in error:

1. We find that the mortgage made by Joseph L. Sheldon and wife Lizzie S. Sheldon, was executed to Henry S. Pruessner on the 6th day of June, 1888, and at that time the title to the land was in Henry S. Pruessner; that he did not convey the land to Joseph L. Sheldon until about the 14th of June, 1888, the deed being acknowledged on the 11th of June, 1888, and delivered June 14, 1888, and that there is no warranty in the mortgage. The wife of Joseph L. Sheldon held a homestead interest in their home on Western avenue, in the city of Topeka, which she parted with in lieu of receiving a homestead in this 40 acres of land. Now, it is clear that the mortgage of the Sheldons could not convey any interest in the land, because at this time they had no title or interest to mortgage. "Until he had title conveyed to him he could have nothing to mortgage." Papin v. Goodman, 103 Ill. 90.

See, also, 98 Ind. 257; Planters' Bank v. Dickinson, 33 Ga. 711; Brewster v. Madden, 15 Kan. 249.

2. The plaintiffs in error contend that there was no consideration for the $ 1,700 mortgage given by them June 6, 1888; that they were trading property, there being no money consideration on either side. They parted with their homestead for this piece of land, and if this case is sustained Henry S. Pruessner will acquire both homesteads without parting with a single dollar of value, while the plaintiffs in error will lose their home. See State Bank v. Blevins, 46 Kan. 536; 1 Dan. Neg. Inst. 832; 1 Perry, Trusts, 306; Boon v. Barnes, 23 Miss. 136; Bell v. McConnell, 37 Ohio St. 402; C. & St. L. Rld. Co. v. Patterson, 15 Ind. 73; Big. Fr., p. 303.

3. Simon Pruessner, the plaintiff, did not own the Sheldon mortgage for $ 1,700 when this suit was commenced, and therefore was not the real party in interest. There is simply a blank indorsement upon the note, and the assignment on the mortgage is not acknowledged. The testimony of Henry S. Pruessner shows that the note never left his possession, and the only consideration claimed by him for said note was a debt of $ 450 that he owed his father, but from his evidence it was only a debt of convenience. He says of the balance of the $ 1,700, "father holds it." See Story, Prom. N., p. 125; 1 Dan. Neg. Inst., p. 766; Wiley v. Gatling, 70 N.C. 420.

4. The witness Henry S. Pruessner says: "And in order to get rid of paying taxes on the note and the interest I owed, I sold the note to my father. In fact, I have not got anything of the money; therefore I sold to father, being I owed a part to him; and in case I want any more I will get it of him, because I am a poor man and I cannot afford to pay taxes on an amount I have not got."

"He who saves a sum of money by evading the payment of a tax does exactly the same injury to society as he who steals so much from the treasury, and is therefore guilty of as great immorality, or as great an act of dishonesty." 1 Shars. Bl., p. 58, note.

See, also, Washburn College v. Comm'rs of Shawnee Co., 8 Kan. 344; Mitchell v. Comm'rs of Leavenworth Co., 9 id. 349; Holt v. Green, 73 Pa. 198; Huey's Appeal, 1 Grant (Pa.), 53; Craft v. McConoughy, 79 Ill. 346; Drexler v. Tyrrell, 15 Nev. 114; Valentine v. Stewart, 15 Cal. 388.

5. The $ 1,000 mortgage, dated February 1, 1888, given by Henry S. Pruessner and wife to J. N. Strickler, cashier, upon the northwest quarter of the southwest quarter of section 16, town 12, range 16, was attempted to be acknowledged before L. H. Pounds, who was at that time vice president of the Investment Banking Company, of Topeka, of which J. N. Strickler was cashier, and was an interested party, being grantee, and therefore said attempted acknowledgment was a nullity. Although said Motter mortgage was recorded, it, not being acknowledged, did not impart notice to anyone; and, further, the alleged assignment of the Motter mortgage was not acknowledged. Gen. Stat. of 1889, P 1130; Sanford v. Weeks, 38 Kan. 324; Perkins v. Matteson, 40 id. 165; Wilson v. Traer, 20 Iowa 231; King v. Weeks, 70 N.C. 372.

6. Even accepting the theory of the court below, that the mortgage held by the defendant Motter is a valid lien upon the land therein described, still the court erred in rendering judgment for 12 per cent. interest on the principal note of $ 1,000 and the coupon note for $ 40. Any stipulation for a greater rate of interest after maturity is null and void, and to enforce the same in a court of equity is inequitable and unjust, and contrary to precedent and authority. 2 Cooley, Bl. bk. 3, p. 432.

Bishop Crumrine, for defendants in error Simon Pruessner, Henry S. Pruessner, and Lizzie Pruessner:

As far as the Pruessner judgment is concerned, the plaintiffs in error assign four grounds only for its reversal, to wit: 1st. The Sheldons did not own the property when they mortgaged it. 2d. There was no consideration for the $ 1,700 note and mortgage. 3d. Defendant in error [Simon Pruessner] was not the owner of the $ 1,700 note and mortgage. 4th. The assignment of the $ 1,700 note and mortgage, by Henry S. Pruessner, was for an illegal purpose, and therefore void. These points will be considered in their order.

1. The deed conveying title to Sheldon was made June 5, 1888, and the mortgage securing the balance of purchase money, $ 1,700, from Sheldon to Pruessner was made June 6, 1888, but it was all one transaction.

2. Plaintiffs in error claim that this property was placed in the agent Vesper's hands for sale, at $ 6,800, and that he, without authority and on his own motion, raised the price to $ 8,000, and for this reason that there was no consideration for the note of $ 1,700. The testimony does not sustain this claim. It is a well-settled rule of law in this state, that where there is any evidence to support the verdict, it will not be disturbed. Weil v. Eckard, 37 Kan. 696.

3. Plaintiffs in error contend that Simon Pruessner was not the owner of the $ 1,700 mortgage, and therefore not the real party in interest, because the assignment on the note was in blank, and the assignment on the mortgage was not recorded, and that the note and mortgage never left the possession of Pruessner. The assignment on the note is correct, and the assignment on the mortgage need not be recorded. There is not one particle of evidence that the note and mortgage never left the possession of Pruessner; but, on the contrary, the testimony of Pruessner is, "that he paid this debt by turning over this mortgage to his father." The debt was $ 450 hard cash which Pruessner had received from his father.

4. Plaintiffs in error further contend, that the assignment to Simon Pruessner was for an illegal purpose, and therefore void. Simon Pruessner was the plaintiff below, not Henry S. Pruessner. The attention of the court is called to the full statement of Henry S. Pruessner. He could not get his interest from Sheldon. He had to pay interest on the Sheldon mortgage, which he had assumed. Sheldon had defaulted in the interest on the mortgage he had assumed. He owed his father $ 450, and wanted to get more money from him; and, in addition, he had always listed and paid the tax on this $ 1,700 note while he had it, and being a poor man, he assigned it to his father so he would not have to pay taxes in the future on it. This was perfectly legitimate, and was not for an illegal purpose. A man is not bound to keep his property in this state merely to pay the tax upon it. Gilman v. Roberts, 79 Wis. 450; 7 Wait's Act. & Def. 72.

The judgment of the court below, as far as this mortgage is concerned, should be affirmed.

A. Bergen, for defendant in error Motter:

On February 1, 1888, Henry S. Pruessner owned the northwest quarter of the southwest quarter of section 16, township 12 range 16, 40 acres, in Shawnee county, being the land involved in this suit. On that day he and his wife made a mortgage of said land to "J. N. Strickler, cashier," to secure their note for $ 1,000, due on February 1, 1891, with 8 per cent. per annum interest, payable semiannually until maturity, according to the tenor of six coupons, and, as specified in the note, "This note and these coupons are to draw 12 per cent. interest per annum after maturity." The mortgage waived appraisement, and provided...