Casner v. Crawford

Court of Appeals of Kansas

Casner v. Crawford

46 P. 41, 4 Kan. App. 687, 1896 Kan. App. LEXIS 261

CourtCourt of Appeals of Kansas

DecidedSeptember 12, 1896

DocketNo. 100

StatusPublished

This text of 46 P. 41 (Casner v. Crawford) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Casner v. Crawford, 46 P. 41, 4 Kan. App. 687, 1896 Kan. App. LEXIS 261 (kanctapp 1896).

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Opinion

The opinion of the court was delivered by

Gilkeson, P. J. :

All questions of fact are settled by the findings of the trial court, which seem to be fully sustained by the evidence. The plaintiff contends and introduces some testimony upon the point that, notwithstanding the mortgage shows it was made on the 6th day of July, 1889, it was not in fact made until the 12th day of November, 1889, but was dated back so as -to correspond with the notes secured-thereby. Even admitting this to be true, Crawford’s mortgage of October 21, 1889, which was filed November 2, 1889, was in full force and effect when she took her mortgage, and when she filed it for record, and covered the identical property she claims. How can she then be a subsequent mortgagee? '

‘ ‘ A subsequent mortgagee with notice of prior mortgage is not a subsequent mortgagee in good faitb, under paragraph 3905 of the General Statutes of 1889. [690]*690The words ‘ subsequent purchasers’ and ‘ subsequent mortgagees in good faith,’ in paragraph 3905, mean only purchasers and mortgagees who purchased or took their mortgages after the expiration of the year from the filing of the mortgage.” {Howard v. National Bank, 44 Kan. 549.)

That she had notice of a mortgage in favor of Crawford is shown by the recital in her mortgage. But she says: “This mortgage was released, and this gave us a first mortgage.” This is not sustained by the evidence. The testimony shows that J. T. Crawford, the owner of these mortgages, has resided in Colorado for 10 years ; that Robert Crawford and his brother Grant have had the control and management of these mortgages and the debts secured thereby exclusively ; that neither he nor his brother ever authorized any one to release this mortgage.

There is not a particle of testimony to show that the colt “Charley,” which was taken as the increase of the mare “Baldy,” was “ Baldy’s” colt, or even to show that the “bay mare” mentioned in the Casner mortgage was the mare “Baldy.” On the other hand, the contention of the defendants that these mortgages from 1888 to 1890 constituted but one transaction — were simply renewals of the first — is upheld by a great preponderance of the testimony.

With regard to the usurious interest being included in the judgment, we think, if the trial court’s attention had been called to it, it would have been stricken out, as should have been done. As to this, we will modify the judgment to $104.50, and, with this modification, the judgment of the court in all other respects will be affirmed.

All the Judges concurring.

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The opinion of the court was delivered by

Gilkeson, P. J. :

All questions of fact are settled by the findings of the trial court, which seem to be fully sustained by the evidence. The plaintiff contends and introduces some testimony upon the point that, notwithstanding the mortgage shows it was made on the 6th day of July, 1889, it was not in fact made until the 12th day of November, 1889, but was dated back so as -to correspond with the notes secured-thereby. Even admitting this to be true, Crawford’s mortgage of October 21, 1889, which was filed November 2, 1889, was in full force and effect when she took her mortgage, and when she filed it for record, and covered the identical property she claims. How can she then be a subsequent mortgagee? '

‘ ‘ A subsequent mortgagee with notice of prior mortgage is not a subsequent mortgagee in good faitb, under paragraph 3905 of the General Statutes of 1889. [690]*690The words ‘ subsequent purchasers’ and ‘ subsequent mortgagees in good faith,’ in paragraph 3905, mean only purchasers and mortgagees who purchased or took their mortgages after the expiration of the year from the filing of the mortgage.” {Howard v. National Bank, 44 Kan. 549.)

That she had notice of a mortgage in favor of Crawford is shown by the recital in her mortgage. But she says: “This mortgage was released, and this gave us a first mortgage.” This is not sustained by the evidence. The testimony shows that J. T. Crawford, the owner of these mortgages, has resided in Colorado for 10 years ; that Robert Crawford and his brother Grant have had the control and management of these mortgages and the debts secured thereby exclusively ; that neither he nor his brother ever authorized any one to release this mortgage.

There is not a particle of testimony to show that the colt “Charley,” which was taken as the increase of the mare “Baldy,” was “ Baldy’s” colt, or even to show that the “bay mare” mentioned in the Casner mortgage was the mare “Baldy.” On the other hand, the contention of the defendants that these mortgages from 1888 to 1890 constituted but one transaction — were simply renewals of the first — is upheld by a great preponderance of the testimony.

With regard to the usurious interest being included in the judgment, we think, if the trial court’s attention had been called to it, it would have been stricken out, as should have been done. As to this, we will modify the judgment to $104.50, and, with this modification, the judgment of the court in all other respects will be affirmed.

All the Judges concurring.

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46 P. 41, 4 Kan. App. 687, 1896 Kan. App. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casner-v-crawford-kanctapp-1896.

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