The Union Central Life Insurance Company v. Puckett

• Decision Date: 11 March 1916
• Docket Number: 19,948
• Citation: 155 P. 930,97 Kan. 428
• Parties: THE UNION CENTRAL LIFE INSURANCE COMPANY, Appellant, v. P. H. PUCKETT, as Trustee, etc., et al., Appellees
• Court: Kansas Supreme Court

155 P. 930

97 Kan. 428

THE UNION CENTRAL LIFE INSURANCE COMPANY, Appellant, v. P. H. PUCKETT, as Trustee, etc., et al., Appellees

No. 19,948

Supreme Court of Kansas

March 11, 1916

Decided, January, 1916.

Appeal from Cherokee district court; EDWARD E. SAPP, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

MORTGAGE--Stipulation to Pay Taxes--Nonpayment--Right of Foreclosure. A stipulation in a mortgage provided that if payments of principal and interest of the mortgage debt were not paid when due, or if the taxes assessed against the mortgaged property were not paid when payable, the whole debt should become due and the mortgage become subject to foreclosure at the option of the mortgagee, and that in case a default was made in the payment of taxes the mortgagee might pay the same and the mortgage should stand as security for the taxes so paid. Held, that a default in the payment of the taxes operated to accelerate the maturity of the mortgage debt and gave the mortgagee the right to maintain foreclosure at once; and held further, that the right to foreclose was not waived by the payment of the defaulted taxes by the mortgagee.

A. H. Skidmore, and S. L. Walker, both of Columbus, for the appellant.

No appearance was made for the appellees.

OPINION

JOHNSTON, C. J.:

The Union Central Life Insurance Company brought this action to foreclose a mortgage on land in Cherokee county, given to secure a note for $ 2000 executed by P. H. Puckett, trustee, Percival H. Puckett and Ada L. Puckett. This appeal is taken from the judgment of the trial court sustaining the defendants' demurrer to the petition.

The petition alleged the execution by the defendants of the note and mortgage on May 23, 1911. By the terms of the mortgage the defendants agreed, among other things, to pay when due all taxes and assessments of every nature which would become liens upon the land, and it was further provided that in case such taxes and assessments were not so paid the plaintiff might pay them and be entitled to interest thereon at the rate of ten per cent per annum, and that the mortgage should stand as security for any payments so made. The mortgage also contained the condition that upon the defendants' failure to pay any of the principal or interest when due, or to comply with any of the covenants of the mortgage, the whole sum or sums secured thereby should thereupon become due and payable at the option of the plaintiff and the mortgage be subject to foreclosure. It was further alleged that the defendants, in violation of a covenant in the mortgage, had made default in the payment of the taxes assessed on the land for 1912, and that the plaintiff on August 28, 1913, elected to and did pay the taxes with the accrued penalties thereon, amounting to sixty-three dollars and two cents; and that the defendants had also made default in the payment of the taxes for the year 1913, and the plaintiff had paid the taxes assessed for that year, amounting to sixty-six dollars and four cents. Because of these defaults the plaintiff elected to declare the whole amount of the note to be due with the accrued interest thereon, and asked for a judgment for the amount due and for a foreclosure of the mortgage given to secure the payment of the note.

The trial court sustained the demurrer to the petition on the theory that as the plaintiff had elected to pay the taxes due and unpaid the premises thereby became security for their repayment, and that the plaintiff by paying the taxes itself had waived the default of the defendants and its right to foreclose the mortgage...