The State Bank of Dodge City v. Al., 26,279

CourtUnited States State Supreme Court of Kansas
Writing for the CourtMarshall, J.
Citation120 Kan. 8,242 P. 461
Decision Date09 January 1926
Docket Number26,279
PartiesTHE STATE BANK OF DODGE CITY, Appellant, v. REED BYERS et. al., Appellees

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 [242 P. 462]

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. [120 Kan. 9] 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...

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1 practice notes
  • State Bank of Dodge City v. McKibben, 33455.
    • United States
    • United States State Supreme Court of Kansas
    • 10 Julio 1937
    ...question in this lawsuit. Various features of this litigation have already received the consideration of this court. State Bank v. Byers, 120 Kan. 8, 242 P. 461; McKibben v. Byers, 138 Kan. 216, 25 P.2d 357. The material facts in brief were these: In 1925 the plaintiff bank recovered judgme......
1 cases
  • State Bank of Dodge City v. McKibben, 33455.
    • United States
    • United States State Supreme Court of Kansas
    • 10 Julio 1937
    ...question in this lawsuit. Various features of this litigation have already received the consideration of this court. State Bank v. Byers, 120 Kan. 8, 242 P. 461; McKibben v. Byers, 138 Kan. 216, 25 P.2d 357. The material facts in brief were these: In 1925 the plaintiff bank recovered judgme......

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