Smith v. Perkins
Decision Date | 01 January 1901 |
Parties | SMITH et al. v. PERKINS. |
Court | Kansas Court of Appeals |
Error from court of common pleas, Wyandotte county; William G Holt, Judge.
Suit by Susan O. Perkins against J. A. Smith and others for the foreclosure of a mortgage. From a judgment in favor of plaintiff, and from an order overruling a motion for a new trial, defendants bring error. Affirmed.
J. A Smith and L. W. Keplinger, for plaintiffs in error.
Samuel Maher and Francis M. Hayward, for defendant in error.
This is an action by the defendant in error to foreclose a mortgage against the plaintiffs in error and others. From the judgment for the plaintiff the defendants prosecute this proceeding, and assign for error, first, the court’s denying their motion for a judgment upon the pleadings. This assignment is abandoned, and hence we need not give it any attention. Second, that the court refused to make additional findings of fact. The additional facts which the defendants asked the court to find were immaterial. It would not aid the defendants for the court to say when first default occurred for the reason that the cause of action did not begin until the plaintiff exercised her option to declare the debt due and for the further reason that the makers of the note and mortgage became nonresidents of the state within two years after the execution of the note and mortgage, and have remained nonresidents according to the findings of the court. So that, even if the court should have found a default, and election on the part of the plaintiff to declare the debt due, it would not create a bar by reason of the absence of the makers from the state.
The third assignment of error is that the court erred in denying plaintiff’s motion for judgment upon facts found. Two questions are presented in this assignment. The first is that the cause of action is barred by the statute of limitations. The court found to the contrary. As we have said, the absence of the makers of the note and mortgage from the state suspended the running of the statute of limitations, and the fact that the plaintiff was in possession under the mortgagors, as grantees, made no difference. The other contention under this assignment is that, the court having found that the plaintiff had acquired a tax deed to the property, thereby her mortgage lien was extinguished, and she had...
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