The Hays Land and Investment Company v. Bassett

• Decision Date: 10 June 1911
• Docket Number: 17,076
• Citation: 85 Kan. 48,116 P. 475
• Parties: THE HAYS LAND AND INVESTMENT COMPANY, Appellee, v. GEORGE M. BASSETT et al. (J. B. MOORE, Appellant)
• Court: Kansas Supreme Court

116 P. 475

85 Kan. 48

THE HAYS LAND AND INVESTMENT COMPANY, Appellee, v. GEORGE M. BASSETT et al. (J. B. MOORE, Appellant)

No. 17,076

Supreme Court of Kansas

June 10, 1911

Decided January, 1911.

Appeal from Sherman district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACTIONS AND REMEDIES--Accrual of Action--Place--Time. A cause of action upon a contract for the payment of money arises, within the meaning of section 21 of the civil code, at the time of the maturity of the obligation, upon the default of payment, and in the state or country where the obligor at the time resides and may be summoned; it arises, or accrues, within the meaning of that section, but once and at no other time or place.

2. LIMITATION OF ACTIONS--Nonresident Obligor--Foreign Statute Controls. When a cause of action arises the statute of limitation of the state or country where the obligor resides immediately begins to run, and if in another state or country than this state, an action on the contract is not barred by limitation in this state by the provisions of section 21 of the civil code until and unless the bar of limitation has fallen in such other state or country.

3. PLEADINGS--Statute of Limitation--Waiver. Where a defendant in his answer, in such action, pleads only the statute of limitations of one state, he waives and can not rely upon or prove the statute of another state as a bar to the action.

George H. Whitcomb, and Clad Hamilton, for the appellant.

Lee Monroe, for the appellee.

OPINION

SMITH, J.:

This action was tried to the court, without a jury, and, after hearing the evidence and taking the case under advisement for a time, the court made the following findings of fact:

"This is an action to foreclose a real-estate mortgage given upon the southeast quarter of section 12, in township 10, range 41, in Sherman county, Kansas. The action was begun in July, 1907. The mortgage was executed by George M. Bassett and wife, Ruth A. Bassett, to Volney Kinyon on November 1, 1887, and fell due on November 1, 1892. It is for $ 450 and bears interest at the rate of seven per cent per annum. On April 26, 1888, the mortgage was assigned to Dennis Tracey, jr., and was recorded on April 30, 1888. Afterward it was assigned by one C. J. Bills to the plaintiff, who produced the same together with the note duly indorsed by said Bills in court at the trial hereof. There is no assignment of either the note or mortgage by Dennis Tracey, jr., to anyone. Soon after the note and mortgage were given by Bassett and wife they left Kansas and went into the state of Iowa, where they stayed and resided for a period of some three years, when they left that state and went into the state of Nebraska, where they were and resided at the time the note and mortgage matured, to wit, on November 1, 1892. They remained in Nebraska for about four years after the maturity of the note and mortgage, but not long enough for the cause of action thereon to become barred in that state, when they went into the state of Iowa and again took up their residence therein, remaining there for a time sufficient to bar the action on the note and mortgage in Iowa, had the note and mortgage matured while they were living therein. The mortgagee was at the maturity of the debt a nonresident of this state. Interest was paid on the note up to May 1, 1893. The taxes on the land became delinquent for the year 1895, and the land was sold to the county of Sherman at the sale held in September, 1896, for the taxes of 1895. On January 11, 1902, the county treasurer was authorized by the board of county commissioners of the county to execute and the county clerk was authorized to assign a tax-sale certificate to one J. B. Moore, one of these defendants, covering this land, for the sum of $ 51.75, under the law authorizing the board to compromise taxes. On the 2d day of August, 1902, the county clerk issued and delivered to said Moore a tax deed under such compromise, which tax deed was recorded on August 9, 1902. On the 12th day of February, 1902, the then owners of the fee conveyed the same by quitclaim deed to defendant J. B. Moore, which deed was recorded on February 26, 1902. Ever since this last date defendant Moore has been in possession of the land under said quitclaim deed. Prior to that time, the land being vacant and unoccupied, defendant Moore used it for grazing purposes, built some fencing thereon, planted some trees, and had the use of the premises. There is no evidence showing whether or not permission was given by the then owner of the fee for such use by him. After February, 1902, defendant Moore planted some more trees on said land, the value of which is not shown. Since that time he has paid the taxes on the land and has used it as a part of his ranch. The expressed consideration for the tax deed is $ 59.45. The amount of subsequent taxes paid by Moore is not shown. Defendant Moore claims that plaintiff can not enforce foreclosure of its mortgage for several reasons, amongst which are these: That the mortgage is barred by statutory limitation; that it is barred by laches; that plaintiff is not the owner of the note and mortgage; that the mortgage has been satisfied and released by the parties in interest."

The tax deed to Moore was held invalid for reasons which are not questioned and judgment was entered in favor of the plaintiff, but Moore was adjudged a lien on the land in the sum of $ 119.72, with interest from the date of judgment. No questions are raised upon the findings, nor are any trial errors assigned other than it is claimed that the court should have found the action barred by the statutes of limitation of Kansas and Iowa or of Kansas and Nebraska. The defense of the judgment is that it was not barred by any statute.

The appellant asked that in case this court should approve the findings, that the action is not barred under the statutes of Kansas and Iowa, that the court should receive evidence as to the statutes of Nebraska, or remand the case to the district court with orders to take such evidence. The...