Bullock v. Kendall

Supreme Court of Kansas

Bullock v. Kendall

104 P. 568, 80 Kan. 791, 1909 Kan. LEXIS 164

CourtSupreme Court of Kansas

DecidedOctober 9, 1909

DocketNo. 16,158

StatusPublished

Cited by3 cases

This text of 104 P. 568 (Bullock v. Kendall) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bullock v. Kendall, 104 P. 568, 80 Kan. 791, 1909 Kan. LEXIS 164 (kan 1909).

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Opinion

Per Curiam:

Neither of the releases set up in the answer was accompanied by a certificate as provided in section 1 of chapter 365 of the Laws of 1903 where a release of a mortgage is made by the executor or administrator of the mortgagee of record, and the court properly held the release insufficient.

Section 4 of chapter 168 of the Laws of 1899 (Gen. Stat. 1901, § 4337) provides that where assignments have not been recorded “the payment of any interest or principal on the debts secured by such mortgages to the mortgagees or the assignees whose assignments appear last of record . . . shall be and constitute a complete defense to any action” thereon. But the finding of the court that Brown paid nothing in satisfaction of either principal or interest on the mortgage is a finding of fact upon conflicting testimony and can not be disturbed. This is a sufficient answer to the claim that the mortgage was satisfied, for, if there was no pay[792]*792ment either on principal or interest, the provision from, which we have just quoted can have no application.

Counsel for the plaintiff in error, however, insist, that the acknowledgment of satisfaction itself constitutes a complete defense to any action, and that such is. the meaning of the' statute. Counsel have doubtless, overlooked the decision of the court in Mayse v. Williams, 77 Kan. 813, in which this section of the statute was construed to mean that the person paying-should only be entitled to credit for the amount paid.

The defense of the statute of limitations can not avail the defendant. The evidence fails to disclose of' what state the mortgagor, Kirkpatrick, was a resident when the cause of action accrued or where the owner and holder of the mortgage resided at that time, nor was there any attempt in the answer to bring the case within the rule declared in Bruner v. Martin, 76 Kan. 862.

The judgment is affirmed.

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Per Curiam:

Neither of the releases set up in the answer was accompanied by a certificate as provided in section 1 of chapter 365 of the Laws of 1903 where a release of a mortgage is made by the executor or administrator of the mortgagee of record, and the court properly held the release insufficient.

Section 4 of chapter 168 of the Laws of 1899 (Gen. Stat. 1901, § 4337) provides that where assignments have not been recorded “the payment of any interest or principal on the debts secured by such mortgages to the mortgagees or the assignees whose assignments appear last of record . . . shall be and constitute a complete defense to any action” thereon. But the finding of the court that Brown paid nothing in satisfaction of either principal or interest on the mortgage is a finding of fact upon conflicting testimony and can not be disturbed. This is a sufficient answer to the claim that the mortgage was satisfied, for, if there was no pay[792]*792ment either on principal or interest, the provision from, which we have just quoted can have no application.

Counsel for the plaintiff in error, however, insist, that the acknowledgment of satisfaction itself constitutes a complete defense to any action, and that such is. the meaning of the' statute. Counsel have doubtless, overlooked the decision of the court in Mayse v. Williams, 77 Kan. 813, in which this section of the statute was construed to mean that the person paying-should only be entitled to credit for the amount paid.

The defense of the statute of limitations can not avail the defendant. The evidence fails to disclose of' what state the mortgagor, Kirkpatrick, was a resident when the cause of action accrued or where the owner and holder of the mortgage resided at that time, nor was there any attempt in the answer to bring the case within the rule declared in Bruner v. Martin, 76 Kan. 862.

The judgment is affirmed.

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Bluebook (online)

104 P. 568, 80 Kan. 791, 1909 Kan. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullock-v-kendall-kan-1909.

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