Westcott v. Gleason

• Decision Date: 11 May 1901
• Docket Number: 12,162
• Citation: 63 Kan. 49,64 P. 1032
• Parties: EVERETT WESTCOTT, as Administrator, v. H. WHITESIDE AND H. W. GLEASON, as Copartners
• Court: Kansas Supreme Court

64 P. 1032

63 Kan. 49

EVERETT WESTCOTT, as Administrator, v. H. WHITESIDE AND H. W. GLEASON, as Copartners

No. 12,162

Supreme Court of Kansas

May 11, 1901

Decided January, 1901.

Error from Reno district court; F. L. MARTIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NOTE AND MORTGAGE -- Declaration of Election. A declaration that a debt is due and an election to treat it as due of a particular date are not for the purposes of the pending action only but for all purposes.

2. NOTE AND MORTGAGE -- Limitation of Action. Where a mortgage provides that upon default in the payment of interest or taxes the whole sum secured thereby shall, at the option of the legal holder, become due and payable, the statute of limitations begins to run at the time stated in the declaration of election.

John W Roberts, James Lawrence, and Levi Ferguson, for plaintiff in error.

H. Whiteside, and H. W. Gleason, for themselves.

DOSTER, C. J. SMITH, ELLIS, POLLOCK, JJ.

OPINION

PER CURIAM.

Many questions are presented in this case and ably argued on each side by counsel, but in the view we have taken only one proposition calls for consideration in this court.

A mortgage on lands in Reno county was executed about March 1, 1887. It secured a bond with interest coupons attached, maturing on the 1st days of September and March in each year. The mortgage by its terms provided that upon default in the payment of interest or taxes the whole sum secured by the mortgage should, at the option of the legal holder, at once become due and payable, without notice, and that thereafter the principal and interest should draw interest at the rate of twelve per cent. per annum. The stipulated rate of interest before maturity was seven per cent. No interest was ever paid on the mortgage, and the taxes accruing against the land subsequently to the execution of the mortgage remained wholly unpaid.

By due assignment, Thomas A. Westcott became the legal owner of the mortgage and debt thereby secured, and on August 12, 1890, he brought suit for foreclosure, and in his petition elected to declare the whole mortgage debt due as of November 1, 1888, and claimed interest at twelve per cent. per annum from and after that date. The plaintiff in that action died March 1, 1893, and his administrator was appointed on the 16th day of the same month. The action thus commenced continued pending until October 13, 1893, when it was dismissed for reasons not appearing in the record. No effort was at any time made to revive the action in the name of the administrator of the deceased plaintiff, nor was any motion ever made to reinstate the action, although it would seem to have been improvidently dismissed.

On the 20th day of May, 1895, this action was commenced by the administrator of the estate of Thomas A....