122 Kan. 74 | Kan. | 1926
The opinion of the court was delivered by
This is an action to foreclose two real estate mortgages. The trial court sustained plaintiff’s motion for judgment in his favor upon the pleadings. The defendant has appealed. The facts giving rise to the controversy are substantially as follows:
On April 1, 1920, defendant executed a note to the Central Trust Company for $3,500, with interest coupons attached, and a mortgage securing the same, on certain real property in Shawnee county. On April 2, 1920, she executed a note for $2,500 to the Central Trust Company, secured by a second mortgage, upon the same property. On May 3, 1920, the Central Trust Company assigned both mortgages to J. E. Fields and indorsed both notes and the interest coupons attached without recourse. On May 4, 1920, J. E. Fields assigned both mortgages and transferred them, together with the notes and coupons, to the plaintiff, E. D. Berridge, who resides at Leola, S. D. In March, 1924, he filed an action to foreclose the mortgages. The original mortgages, notes and coupons, and assignments were attached as exhibits to the petition.
The verified answer denied that plaintiff owned the notes and
The sole question before us is whether this answer states a defense. It seems clear that it does not, for several reasons: First, there is no denial that plaintiff executed the notes and mortgages, nor that she received the amount of money represented by them from the Central Trust Company. There is no allegation of fraud on the part of the Central Trust Company or by any one in its behalf or representing it. Second, the allegations of the fraud of J. E. Fields are insufficient as a defense, for the reasons, (a) there is no allegation
The real contention of defendant is that she was damaged in a land trade by the fraud of a person who had nothing to do with the execution of the notes and mortgages sued upon and who is not a party to this action. Obviously such a contention is not a defense.
The judgment of the court below is affirmed.