The State Bank of Dodge City v. Al.

• Decision Date: 09 January 1926
• Docket Number: 26,279
• Citation: 120 Kan. 8,242 P. 461
• Parties: THE STATE BANK OF DODGE CITY, Appellant, v. REED BYERS et. al., Appellees
• Court: Kansas Supreme Court

242 P. 461

120 Kan. 8

THE STATE BANK OF DODGE CITY, Appellant, v. REED BYERS et. al., Appellees

No. 26,279

Supreme Court of Kansas

January 9, 1926

Decided January, 1926.

Appeal from Ford district court; H. S. ROGERS, judge pro tem.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

APPEAL AND ERROR--Review--Verdict and Findings. On the facts found by the trial court, and under the contract involved in this action, judgment was properly rendered in favor of the defendant.

G. Polk Cline and Nellie Cline, both of Lamed, for the appellant.

Carl Van Riper, of Dodge City, and A. L. Moffat, of Kinsley, for the appellees.

OPINION

Marshall, J.

The plaintiff sued for the recovery of money. Judgment was rendered in favor of the defendant, and the plaintiff appeals.

The cause was tried without a jury, and special findings of fact were made as follows:

"1. Prior to January 23, 1917, one M. G. Boorse was the owner of 2,080 acres of land in township 22, range 42, in Hamilton county, Kansas.

"2. January 23, 1917, the said M. G. Boorse made a contract of sale of said land to Alexander A. Sharp for a consideration of $ 10,400; $ 500 to be paid in cash, $ 500 February 15 1917, $ 1,040 on or before April 1, 1918, $ 1,040 on or before April 1, 1919, and $ 1,040 on or before April 1, 1920. Upon the payment of the amount due on or before April 1, 1920, the said parties of the first part, meaning Boorse and wife, were to convey said land to Sharp or his assignees and were to take a mortgage back of $ 6,280, due on or before April 1, 1924, bearing 6 per cent from April 1, 1920.

"3. This contract between Sharp and Boorse was acknowledged and filed for record in the office of the register of deeds of Hamilton county, Kansas, January 23, 1917.

"4. On the 12th day of November, 1917, Sharp assigned his interest in the contract in blank for the benefit of Clay McKibben. This assignment was acknowledged and filed for record in the office of the register of deeds of Hamilton county, Kansas February 25, 1918. Prior to the filing of this assignment from Sharp for record, Clay McKibben, with authority from Sharp, had put in the blank space left for naming the assignee the name of Reed Byers. September 22, 1919, Reed Byers assigned this contract to Clay McKibben. This assignment was acknowledged and filed for record in the office of the register of deeds of Hamilton county, Kansas, October 8, 1919.

"5. December 24, 1917, Clay McKibben executed an agreement whereby he acknowledged an indebtedness of $ 3,000 to Reed Byers and stipulating therein that his interest in the Boorse-Sharp land contract should be pledged to secure the payment of that sum.

"6. January 4, 1919, Clay McKibben was indebted to the plaintiff on two notes, one of $ 6,700, dated February 1, 1918, and bearing 8 per cent, and another of $ 800, due June 20, 1918, bearing 10 per cent.

"7. The indebtedness so existing on the 4th day of January 1919, had not been reduced at the time returns from the sale to Brower of the McKibben-Sharp land, which was October 9, 1919. October 9, 1919, the amount due was $ 8,055.63.

"8. The assignment from Byers to McKibben under date of September 22, 1919, was made for the purpose of enabling McKibben to close his deal with Brower.

"9. On the 26th day of June, 1919, McKibben made a contract with one D. M. Brower for the sale of the land described in the Sharp contract, and in addition thereto two quarters of land belonging to Byers personally, and three quarters belonging to Ernest McKibben; the contract, however, being silent as to the ownership of Byers and Ernest McKibben in the quarters referred to. The consideration named in the McKibben-Brower contract is $ 8 per acre, straight.

"10. In pursuance of this contract Clay McKibben on the 6th day of October, 1919, executed a deed of general warranty to D. M. Brower for the 2,720 acres of the land described in the contract. The consideration therefor was $ 19,200. Said deed contains a clause as follows: 'Except one mortgage of $ 7,280 on the southeast quarter of section 10, and all of sections 11, 23 and 33 in township 22, range 42; also a balance of $ 428.48 upon a mortgage of $ 1,285 on part of the north half of section 36, township 22,range 42, being the only encumbrance with which said lands conveyed are charged.' This mortgage of $ 7,280 rests upon the land described in the Sharp contract. This deed from Clay McKibben to D. M. Brower was filed for record in the office of the register of deeds of Hamilton county, Kansas, on the 8th day of October, 1919. The other 160 acres covered by the McKibben-Brower contract was school land and was adjusted by assigning the school certificate and assumption of what was due the state.

"11. On the 14th day of July, 1919, M. G. Boorse and wife by deed of general warranty conveyed the lands described in the Sharp contract to Clay McKibben. Such deed was acknowledged and recorded in the office of the register of deeds of Hamilton county, Kansas, on the 8th day of October, 1919.

"12. On the 1st day of April, 1919, McKibben executed to Boorse a mortgage on the land described in the Sharp contract in the sum of $ 7,280. This mortgage was acknowledged on the 29th day of August, 1919, and filed for record in the office of the register of deeds of Hamilton county, Kansas, on the 7th day of October, 1919.

"13. At the time of delivering this mortgage by McKibben to Boorse, McKibben also paid in cash the sum of $ 1,040, with the interest added, totaling the sum of $ 1,072.63.

"14. The deal between Brower and McKibben was closed at Syracuse, Kan., and later proceeds of the sale in the sum of $ 15,279.50 were deposited in the State Bank of Dodge City on October 9, 1919, this deposit being made personally by the sister of Clay McKibben. Of this sum $ 2,560 belonged to Reed Byers, being the proceeds of two quarters included in the deed to Brower.

"15. On the 15th day of October, 1919, McKibben applied $ 500 of this money on his indebtedness to the bank, and an additional sum of $ 181.80 as interest on his indebtedness. The balance of this, $ 2,461.26, was applied by McKibben on a debt which his mother owed to the plaintiff bank.

"16. Prior to January 4, 1919, the plaintiff bank had asked McKibben for security upon his indebtedness to the bank, and in order to carry out his purpose of giving them security, McKibben spoke to the defendant, Reed Byers, concerning the matter of his indebtedness to the bank and suggesting that Byers write to the bank by way of assuring the bank that he would do something in that regard. At the request of McKibben, Byers, on January 4, 1919, wrote to the plaintiff as follows:

"'State Bank of Dodge City, Dodge City, Kansas.

"DEAR SIRS--Mr. McKibben has, asked me to make a deed to you of 2,000 acres in Hamilton county, Kansas, in township 22, range 42, and I wish to say that inasmuch as we are now making a trade of this property I do not like to complicate matters by making this deed at this time. However, I will protect you above $ 8,200 which I hold as a first lien on this land.

"Yours very truly,

REED BYERS.'"

"17. At the time of writing the letter in the preceding finding, McKibben was indebted to Byers in the sum of $ 8,200, and Byers at the time was holding this McKibben interest in the Sharp land contract by way of securing the payment of said indebtedness.

"18. In closing the transaction of procuring deed from Boorse and giving a mortgage back to him by McKibben, the State Bank of Dodge City handled the papers and carried on the correspondence with regard to the matter in making the settlement.

"19. The plaintiff did not expressly agree at any time to waive any rights it might have to proceeds arising from a sale of the land described in the Sharp contract.

"20. The notes evidencing the indebtedness of McKibben to the plaintiff bank were renewed...