Spesard v. Spesard

• Decision Date: 05 January 1907
• Docket Number: 14,831
• Citation: 88 P. 576,75 Kan. 87
• Parties: H. W. SPESARD, as Executor, etc., v. A. P. SPESARD et al
• Court: Kansas Supreme Court

88 P. 576

75 Kan. 87

H. W. SPESARD, as Executor, etc., v. A. P. SPESARD et al

No. 14,831

Supreme Court of Kansas

January 5, 1907

Decided January, 1907.

Error from Geary district court; OSCAR L. MOORE, judge.

STATEMENT.

ON February 14, 1905, this suit was commenced in the district court of Geary county to obtain judgment upon a note and to foreclose a mortgage given to secure the same. The note reads:

"$ 2100. JUNCTION CITY, KAN., August 29, 1890.

"We promise to pay to J. J. Spesard the sum of two thousand one hundred dollars, in payments as follow: Two hundred dollars on the first day of March, 1891, and two hundred dollars on the first day of March of each successive year thereafter until the whole sum shall be paid. The whole sum hereof is to bear interest at the rate of six per cent. per annum from the date hereof until paid. Whenever any payment is made on the same, interest is to be computed on the balance until the time of the next payment. Interest to be paid annually on the first day of March of each year. If, however, the undersigned should any year have a failure of crops, then when the interest is to be paid that year and the $ 200 installment for that year is to go over until the next year, when payments shall be resumed as before. No more than $ 200 and interest is required to be paid in one year.

A. P SPESARD,

LAURA F. SPESARD."

The mortgage was in the ordinary form, was executed April 10 1897, and contained a clause which reads:

"But if said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum and sums, and interest thereon, shall and by these presents become due and payable and said party of the second part shall be entitled to the possession of said premises."

No payments of either principal or interest have been made upon the note. After the execution of the mortgage, and on May 19 1902, J. J. Spesard, the payee and holder of the note, died testate. On June 3, 1902, H. W. Spesard was appointed executor of the will of the decedent, and afterward commenced this suit. The petition contains a copy of the note and mortgage, with the averments usual in such cases.

The answer of the makers of the note and grantors in the mortgage alleges substantially that they failed to pay anything whatever on the note, and failed to pay the taxes due on the mortgaged premises for the years 1897 and 1898, and therefore that the debt became barred by the statute of limitations long before the suit was commenced. To this the plaintiff replies that the defendants redeemed the lands from the sale for the defaulted taxes of 1897 and 1898, and thereby the default was waived and the statute of limitations ceased to run thereafter, and the bar of the statute was prevented.

Each of the parties moved for judgment on the pleadings. The plaintiff claimed judgment for the full amount of the note according to its face. The defendants claimed judgment for costs, for the reason that the debt was barred by the statute of limitations before the suit was commenced. The court, contrary to each of these motions, entered judgment for the plaintiff for $ 576, with interest after date of judgment. Both parties excepted and both ask for a reversal.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Note and Mortgage--Construction. A note and the mortgage given to secure its payment constitute the contract of the parties, and the two instruments must be construed together.

2. CONTRACTS--Mortgage Executed Subsequently to the Note. A mortgage given to secure the payment of a note, though executed long after the date of the note, will, if such appears to have been the intention of the parties, become a part of the contract from the time of its delivery, the same as if both instruments had been executed at the same time.

3. CONTRACTS--Stipulation that Debt Shall Mature upon Non-payment of Taxes by Mortgagor. A stipulation in such a mortgage providing that, upon failure of the mortgagors to pay all taxes thereafter levied upon the mortgaged premises when by law they are due and payable, the whole debt secured by such mortgage shall become due immediately, is valid, and may be enforced by either party.

4. CONTRACTS--Failure to Pay Taxes--Accrual of Right of Action--Waiver. Where, in such a case, the mortgagors fail to pay the taxes upon the mortgaged premises at the time they are due and payable the whole debt secured by such mortgage becomes due at once, and the statute of limitations begins to run immediately against the owner and holder of the debt. Neither party can waive or change this situation without the consent of the other.

5. CONTRACTS--Redemption from Tax Sale by Mortgagor--Suspension of Statute of Limitations. Where a mortgagor in such a mortgage fails to pay taxes as required, and permits the land to be sold therefor, the subsequent redemption of such land by him will not affect the running of the statute of limitations.

John D Davis, for plaintiff in error.

Humphrey & Humphrey, and Roark & Roark, for defendants and cross-pet...