Bailey v. Gilliland

2 Kan. App. 558 | Kan. Ct. App. | 1896

The opinion of the court was delivered by

Gilkeson, P-. J. :

Very many assignments of error are set out in the brief of plaintiff in error, only one of which, we think, demands our attention, it being the only one to which the attention of the trial court was called upon the motion for new trial, viz., “That the court erred in refusing the plaintiff a lien on the mortgaged premises.” All other errors committed by the trial court were in favor of the plaintiff in error, and of them he cannot be heard to complain. The allegations of the petition are : That on the 1st day of August, 1885, William 0. Gilliland and Sallie Gilliland made, executed and delivered to the Travelers’ Insurance Company their certain promissory note for the sum of $1,100, and to secure the payment of the same, on said date, made, executed and delivered to said insurance company their mortgage .on certain lands; -that said mortgage was duly recorded; that before the maturity of said note, the payee, by indorsement and delivery, sold, transferred, assigned and delivered the said note and mortgage to the plaintiff, whereby he became, and now is, the lawful owner and holder thereof. A copy of the note and mortgage are attached to the petition, and upon the mortgage appears a written assignment thereof by one G. W. Carpenter to the plaintiff. There are no indorsements of any kind upon the note. The defendants William C. Gilland and Sallie Gilliland, under a verified answer, deny each and every allegation and averment in the petition, except such as are in said answer expressly admitted. And they deny, specifically, (1) that the plaintiff has any interest in the note or mortgage, but if he has, it was acquired after the maturity of the note ; (2) that the note and mortgage were never delivered to the Travelers’ Insurance Company ; (3) that there was no consideration for the note ; and (4) that the insurance company never indorsed, sold, assigned or delivered said note ; and they admit the making of the note. The plaintiff, for his reply, files a general denial of every allegation contained in said answer inconsistent with the claims in his petition. As to the defense made by defendant Robert June, it need not now be considered.

It is well established that the plaintiff is not entitled to recover upon any other basis or cause of action than that alleged in his petition, nor can a party allege one thing and support it by proof of an entirely different state of facts. The pleadings in this case put in issue the assignment of the note and mortgage, by general and special denial, the interest of the plaintiff therein and ownership thereof, their transfer by indorsement, assignment, delivery or -otherwise by the payee, and the consideration of the note. These are material allegations which must be supported by proof, to enable the plaintiff to maintain his action. Have they been proven? We think not. On the contrary, we think there is a total failure of proof upon all of them, and some positively disproven. As to the assignment, “The note and mortgage run to the Travelers’ Insuranee Company” : Is there any evidence that the insurace company ever transferred them to any one? We has’e been unable to discover it.- In fact, it is positively shown that they refused to' have anything to do with it. True, there is an assignment upon the mortgage by one G. W. Carpenter of all bus right, title and interest therein to the plaintiff. But what right, title or interest did he have in it? None. Then he certainly did not transfer any. ^Did the Travelers’ Insurance Company transfer it to him? We have failed to find any testimony upon this point. It is conceded that this G. W. Carpenter is the same person that Gilliland applied to for^a loan. He was then his agent for a specific purpose. He had no interest or ownership in these instruments'; no right or authority to transfer or do any other act concerning them, except that which was strictly within the scope of his agency, viz. : To deliver them to the payee upon receipt of the money, and, when they were refused, then to return them to the mortgagors ; not to hold them as a security for a personal debt existing between him and the makers. But it is claimed by plaintiff in error that this note and mortgage were transferred to him by T. C. Henry & Co., agents of the Travelers’ Insurance Company. There is not a scintilla of evidence to sustain any such claim, or that T. C. Henry & Co. ever had any title to this mortgage and note, or that they ever advanced any money thereon or had any right thereunder. The testimony clearly establishes the fact that, if any money was advanced, it was the individual money of said G. W. Carpenter, and he alone, in his individual capacity, assigned (or attempted to) this mortgage. We think it is clearly shown that plaintiff, Bailey, was not the owner, nor had any interest in these instruments.

As to tlie delivery, tlie testimony shows positively that they never were delivered to the mortgagee. On the contrary, they were refused. The only testimony upon this point is that of Mr. Carpenter, viz. :

“1 submitted the matter to the Travelers’ Insurance Company, and, because of the fact of the title not being perfected in the parties, they refused to consummate the loan. I continued to hold it for security for the advance mentioned.”

The mere fact that the Gillilands placed these instruments in the hands of G. W. Carpenter, their agent, for the specific purpose of having them delivered to the Travelers’ Insurance Company upon the receipt of the consideration, does not constitute a delivery of them to the insurance company, even if the company had actually had manual possession thereof, without an acceptance on its part, this would not make the note or mortgage valid. But when, on the contrary, it is established beyond contradiction that it did not accept, but repudiated them, the note and mortgage never became valid. Not only a delivery but an acceptance is necessary to give life to them.

A delivery and acceptance of the mortgage are essential to its validity. If not delivered direct to the mortgagee or his agent, but to a third party, not authorized to act for him, it is necessary to show subsequent acceptance of it by the mortgagee. It is not shown that the mortgagee ever received the mortgage or the note ; that it or an authorized agent was present at the time of the execution; that it afterward consented to it; that the mortgage was delivered to another person for it; that it requested the mortgagors to execute it, nor that it ever claimed or accepted any advantage therefrom. It has been repeatedly held that

“A note and mortgage placed in the hands of a third person, to be delivered to the mortgagee upon the happening of, a Pertain event, and delivered by him without authority, without waiting for such event, was invalid, and could not be enforced, even by a bona fide holder for Value. There is in such a case no delivery of the note and mortgage, and they never had any’legal existence. A mortgage without consideration, deposited to await the performance of conditions which would make a consideration, cannot be made operative by fraudulent delivery before the performance of the conditions without the mortgagor’s consent. The mortgage in such case never became operative at all; it is void from the beginning.” (Powell v. Conant, 33 Mich. 396; Andrews v. Thayer, 30 Wis. 228; Burson v. Huntington, 21 Mich. 415; Goodwin v. Owen, 55 Ind. 243.)

Does not the case at bar come /-strictly within the rule last above cited? We think it does, and is much stronger. In this case, the mortgage and note were not delivered to the mortgagee ; it is not claiming under them, but they were delivered to a stranger by a stranger. Upon what theory the plaintiff in error can claim to be entitled to a lien upon the land in controversy under the mortgage declared upon, we have been unable to discover. .

In passing, we might add that, the plaintiff in error, in his brief, complains of the court for not rendering judgment in his favor for a larger sum — viz., for the $200 claimed to be advanced by Carpenter to Gilliland. This complaint is clearly an afterthought, not raised in the court below, nor called to its attention upon motion for new trial, and cannot be raised at this time in this court. The only relief asked for in the motion for new trial was: "That the court vacate its findings refusing the plaintiff a lien upon the real estate.”

The judgment must be affirmed.

All the Judges concurring.