79 P. 125 | Kan. | 1905
The opinion of the court was delivered by ■
This was a suit by the First National Bank of Herington, Kansas, to foreclose a mortgage given by Samuel Harrison and his wife to secure the payment of several notes. The Boatmen’s Bank and C. M. Smith, its trustee, were made parties defendant, under the allegation that the bank had, or claimed to have, some interest in the mortgaged property. This interest was afterward shown to be a conveyance from Harrison to the Boatmen’s Bank subsequent to the recording of the mortgage. The Boatmen’s Bank, by its trustee, Smith, for answer claimed that Harrison had fully paid the notes. Harrison made default. After the court had entered upon the trial of the issues between the two banks thus made,
Complaint is here made because the case was proceeded with after the suggestion of the death of Harrison without a revivor. This was not error, for two reasons : (1) There was no showing, besides the mere suggestion, that Harrison was dead; (2) it was entirely immaterial, so far as the Boatmen’s Bank was concerned, whether Harrison was dead or unrepresented upon the hearing: The issue between the
It has been repeatedly decided in this court that where the title to mortgaged real estate has passed from the mortgagor subsequently to the execution of the mortgage the mortgagor is not a necessary party in a suit to foreclose. (Jones v. Lapham, 15 Kan. 540; Ashmore v. McDonnell, 39 id. 669, 18 Pac. 281.)
It is further urged by the plaintiff in error that under the evidence shown by the record an excessive amount was found due on the notes. It does not so appear. Aside from the fact that the matter was given careful consideration by the court below, involving, as it did, long and somewhat intricate ac counts, we have no sufficient data from which to make a recalculation, even were we so disposed. The record, as we have already suggested, does not show that all of the evidence considered by the court is therein found.
The judgment is affirmed.