Timmonds v. Messner

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: Timmonds v. Messner, 109 Kan. 518, 200 P. 270 (Kan. 1921)
• Decision Date: 09 July 1921
• Docket Number: 23,330
• Parties: H. W. TIMMONDS, Appellee, v. WILLIAM F. MESSNER et al., Appellants

200 P. 270

109 Kan. 518

H. W. TIMMONDS, Appellee, v. WILLIAM F. MESSNER et al., Appellants

No. 23,330

Supreme Court of Kansas

July 9, 1921

Decided July, 1921.

Appeal from Greeley district court, ALBERT S. FOULKS, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NOTE AND MORTGAGE--Parties Nonresidents--Statute of Limitations--What Law Governs. In an action to foreclose a mortgage in which the parties were nonresidents and the defense was that it was barred by the statute of limitations it is held: first, that the limitation law of the state in which the makers of the note and mortgage resided at the time the cause of action arose thereon, controls; second, that the mortgage is only an incident of the note and when the note is barred the mortgage is likewise barred; third, that in the absence of a statute of the other state making absence from the state an exception to the operation of the statute of limitations, such absence does not suspend the running of the statute.

2. SAME--Death of Debtor--How Long Operation of Statute of Limitation is Suspended. The death of a debtor does not suspend the operation of the statute longer than to give the creditor a reasonable time and opportunity to procure the appointment of an administrator of the deceased debtor's estate.

3. SAME--Affidavit Used as Deposition Proper Evidence. Under the circumstances stated in the opinion, it is held that an affidavit used as a deposition was evidence in the case and warranted the consideration of the same by the court.

W. M. Glenn, of Tribune, for the appellants.

J. N. Haymaker, of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

This was a foreclosure proceeding. A promissory note was executed August 14, 1907, by William F. Messner, Charles Messner and Augusta Messner, for $ 1,050, payable five years after date to J. G. Petgen, and a mortgage of the same date on land in Kansas was executed to secure it. Both were executed in Missouri. Petgen died in 1915, and the note and mortgage were assigned to Timmonds who was also a resident of Missouri. On July 10, 1919, the action of foreclosure was begun, the plaintiff alleging the execution of the note the assignments to plaintiff, that the makers and payee were residents of Missouri when the papers were made, and that the statute of limitations of Missouri was ten years from the maturity of the notes. On publication notice a default judgment was rendered on the note and mortgage in the district court of Greeley county. The land was sold under the judgment on October 6, 1919, subject to a six months' equity of redemption. On March 27, 1920, a motion was made by the children and heirs of Charles Messner, who had previously died, to open up the judgment, and William F. Messner subsequently joined in this motion. An answer to the petition was filed alleging that the action was barred by the statute of limitations of Kansas. At the same time upon the application of the defendants, a restraining order was issued to prevent the sheriff from executing a deed. Upon a motion of plaintiff the restraining order was dissolved on July 19, 1920. The court at that time granted permission to the defendants to file an amended answer which was immediately filed and in which they alleged that the action was barred by the statute of Colorado. Among other things it was alleged that Charles Messner died in Colorado before the maturity of the note; that William F. and Augusta Messner were residents of Colorado at the maturity of the note; that under the laws of Colorado an action is barred in six years after maturity; and that more than six years had elapsed before the action was begun, and therefore the bar of Colorado had run. There was also a claim that the action was not brought in the name of the real party in interest. At the trial the burden of proof was placed upon the defendants. There was evidence to the effect that William F. Messner was a resident of Colorado when the note matured; that Charles and Augusta Messner moved from Missouri to Colorado in 1908 and resided there until he died on April 24, 1912, about four months before the maturity of the note; and that Augusta lived in Colorado until 1913, when she moved to Minnesota, and died there in 1917. There was testimony that no money was paid on the note to J. G. Petgen after August 14, 1912, nor for a long time before that. A witness testified that he was acquainted with the laws of Colorado and that under those laws the limitation upon a promissory note is fixed at six years from maturity, or from the last payment on the note, and that the statute is not tolled by absence from the state. The defense mainly relied upon was the statute of limitations. The debt matured on August 14, 1912, and the action was not begun until more than seven years after that time. While the note and mortgage were executed in Missouri by residents of that state, and the payee also resided there, the makers, it appears, resided in Colorado when the note matured and when a cause of action thereon arose. It is immaterial where the note was executed, as the law of the state in which the makers resided when the cause of action arose controls. ( Bruner v. Martin, 76 Kan. 862, 93 P. 165; Land Co. v. Bassett, 85 Kan. 48, 116 P. 475.) Nor does the fact that land was mortgaged as security for the payment of the note affect the...