3 Kan. App. 346 | Kan. Ct. App. | 1895
The opinion of the court was delivered by
This action was commenced in the district court of Lyon county by the Connecticut Mutual Life Insurance Company against Robert Martin, John L. Butler, Lucy Bain, and Calvin Hood. The suit was on a promissory note executed by Robert Martin to the Connecticut Mutual Life Insurance Company, dated November 1, 1887, secured by a mortgage on real estate in Lyon county. Summons
The defendant in error Calvin Hood, as assignee of the Connecticut Mutual Life Insurance Company, files his motion, appears in said case, and asks the court to dismiss the case for the reason that none of the parties
In this proposition we cannot concur. It is alleged in the petition of the plaintiff below that Robert Martin executed and delivered his mortgage deed to the land described therein. A copy of the mortgage is attached to the petition and made apart thereof; and the ■mortgagor expressly covenants and agrees that, at the delivery thereof, he is the lawful owner of the premises granted, and is seized of a good and indefeasible estate of inheritance therein, free and clear of all incumbrances ; this being an allegation in the petition of the plaintiff which is in no manner denied by the answer of the defendant Lucy Bain. In the second paragraph of her answer, she says that she is the owner in fee simple and in the quiet possession of the real estate described’ in plaintiff’s petition and the mortgage ; but this allegation is made at the time she filed her answer, on the 26th of February, 1890, and refers to that time only. It is nowhere alleged that
Lucy Bain did not predicate her defense on the ground that the land described in the mortgage belonged to her at the date of the mortgage, and, by reason of the execution of the mortgage by Robert Martin, did not create a lien on the property. She denied the delivery of the note and mortgage in her answer, and objected to the introduction of the note and mortgage in evidence. She was seeking to defeat a recovery on the note as well as to defeat the foreclosure of the mortgage. The judgment sought, to be reviewed and reversed is joint, and its provisions and conditions are so dependent that it cannot he •reversed or disturbed without affecting the rights and interests of Robert Martin, and Calvin Hood, assignee of the plaintiff below.
It is true that Robert Martin and Calvin Hood did did not appear in the court below and contest the right of the insurance company to recover on the note and mortgage, as alleged in its petition. They admitted, by their failure to appear and answer, the execution of the note and mortgage to secure the payment of the money, and were willing that judgment should be taken on the note, decree of foreclosure of the mortgage, and for the sale of the land to satisfy the judgment. " While the answer of Lucy Bain in no manner would be in conflict with his right, in case of
The failure to bring into this court the necessary parties compels us to allow the motion to dismiss ; but, however, we have carefully examined the other questions raised in this case, and are satisfied that the overruling of the motion as to the points presented to require plaintiff to make its petition more definite and certain, and the overruling of the demurrer to the amended petition, and the objections to the testimony and other exceptions taken were proper, and that no error was committed in these rulings of the court. .
The absence of the necessary parties, however, compels a dismissal of these proceedings in this court.