State v. Rhodes

• Decision Date: 11 January 1908
• Docket Number: 15,667
• Citation: 77 Kan. 202,93 P. 610
• Parties: THE STATE OF KANSAS v. ALNA R. RHODES
• Court: Kansas Supreme Court

93 P. 610

77 Kan. 202

THE STATE OF KANSAS v. ALNA R. RHODES

No. 15,667

Supreme Court of Kansas

January 11, 1908

Decided January, 1908.

Appeal from Russell district court; JACOB C. RUPPENTHAL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORDS AND PHRASES -- "Conveyance or Assurance" -- Mortgage. A real-estate mortgage is not a "conveyance or assurance" within the meaning of section 2092 of the General Statutes of 1901.

2. CRIMINAL LAW -- Executing Second Mortgage with Intent to Defraud. The execution and delivery of a second mortgage upon real estate, when a first mortgage has been given thereon by the grantor of the second mortgage, and before the first mortgage has been filed for record, without mentioning the first mortgage therein, with the intent to defraud, does not violate the above-mentioned statute.

Fred S Jackson, attorney-general, and John S. Dawson, assistant attorney-general, for The State; L. B. Beardsley, of counsel.

E. W. Grant, and Julius Cohn, amici curiae.

OPINION

GRAVES, J.:

This is a proceeding to determine the sufficiency of an information, filed in the district court of Russell county, which, except formal and unnecessary parts, reads:

"I, M. F. Gernon, the undersigned, county attorney of the said county of Russell, in the state of Kansas, . . . come now here and give the court to understand and be informed that on the 23d day of October, A. D. 1906, the said defendant, Alna R. Rhodes, then and there being, was then and there the owner in fee simple of the following-described real estate, situate in the said county of Russell, in the state of Kansas, to wit: . . . That on the said 23d day of October, 1906, the said defendant, Alna R. Rhodes, and one Minnie E. Rhodes, his wife, at the said county of Russell, in the state of Kansas, made, executed and delivered to one Marc L. Friend their certain principal promissory note, in writing of that date, whereby, for value received, they promised to pay to the order of said Marc L. Friend, in five years after the date thereof, the sum of seven hundred dollars, with interest at the rate of six per cent. per annum until paid, according to ten interest coupon notes for twenty-one dollars each, and annexed to and bearing even date with said principal note.

"That for the purpose of securing the payment of said principal and interest notes, and the sums of money to become due thereon, the said Alna R. Rhodes and Minnie E. Rhodes, at the said county of Russell, in the state of Kansas, and on the said 23d day of October, 1906, made, executed and delivered unto the said Marc L. Friend their certain mortgage, in writing of that date, whereby they, said Alna R. Rhodes and Minnie E. Rhodes, did grant, bargain, sell and mortgage unto the said Marc L. Friend, his heirs and assigns, the aforesaid property situate in the said city of Lucas, in the county of Russell, in the state of Kansas; that said mortgage was duly filed for record in the office of the register of deeds of said Russell county, Kansas, on the 28th day of May, 1907, at one o'clock P. M. of said day, and duly recorded in volume 25 of mortgage records of said county, at page 592. A copy of said mortgage is hereto attached, marked 'Exhibit A' and made a part of this information.

"That the said Marc L. Friend is now and always has been the legal holder and owner of said note, mortgage and coupon notes, and that said mortgage, note and coupon notes have never been paid, or any part thereof, and that the same are outstanding and in force; that the said defendant, Alna R. Rhodes, is now, and ever since the time of the making of said mortgage, note and coupon notes has been, the owner of said real estate hereinbefore mentioned and described, and every part thereof.

"And I, the undersigned, county attorney, do further give the court to understand and be informed that, on the 21st day of May, A. D. 1907, and while said mortgage heretofore mentioned and described, and given previously to said Marc L. Friend, as aforesaid, was outstanding, and in force, as aforesaid, and unrecorded in the office of the register of deeds of said Russell county, Kansas, the said Alna R. Rhodes, then and there being, joined by his said wife, Minnie E. Rhodes, at and within the said county of Russell, in the state of Kansas, did then and there wilfully and unlawfully, and with the intent then and there of him, the said Alna R. Rhodes, the said Marc L. Friend to defraud, make, execute and acknowledge their other certain mortgage in writing of that date to one Harriet Rhodes, whereby he, said Alna R. Rhodes, joined by his said wife, Minnie E. Rhodes, conveyed, sold and mortgaged to said Harriet Rhodes, for the purported consideration of three hundred and fifty dollars, the real estate heretofore mentioned and described and theretofore mortgaged to said Marc L. Friend, as aforesaid, to wit: . . . That said mortgage, so made and given to said Harriet Rhodes, as aforesaid, was, on the 22d day of May, 1907, at ten o'clock A. M., and prior to the recording of the mortgage given to said Marc L. Friend, as aforesaid, filed for record in the office of the register of deeds of said Russell county, Kansas, and recorded in volume 25 of mortgage records of said county, at page 591; and which mortgage, so made and given to said Harriet Rhodes by said Alna R. Rhodes and Minnie E. Rhodes, and recorded as aforesaid, with indorsements thereon, is in words and figures as follows: [Here follows an ordinary real-estate mortgage from Alna R. Rhodes and wife to Harriet Rhodes.] On the back of said mortgage appears the following record item: 'State of Kansas, Russell county, ss. I certify that this instrument was filed for record on the 22d day of May, A. D. 1907, at ten o'clock A. M., and duly recorded in book 25 of mortgages, at page 591.' That said Alna R. Rhodes, in the said mortgage so made and executed by him and the said Minnie E. Rhodes to the said Harriet Rhodes, as aforesaid, and recorded as aforesaid, wilfully, purposely and unlawfully, and with the intent of him, the said Alna R. Rhodes, the said Marc L. Friend to defraud, failed to and did not recite or describe, or state in substance therein, the mortgage so made and given to the said Marc L. Friend, as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas."

"Exhibit A" attached to the information is an ordinary real-estate mortgage, from Alna R. Rhodes and wife to Marc L. Friend, covering the same property as the one to Harriet Rhodes. On the back of this mortgage appears the following record item:

"State of Kansas, Russell county, ss. I certify that this instrument was filed for record on the 28th day of May, A. D. 1907, at one o'clock P. M., and duly recorded in book 25 of mortgages, at page 592."

A motion to quash was allowed. The journal...