Bowman v. Germy

23 Kan. 306 | Kan. | 1880

The opinion of the court was delivered by

Horton, C. J.:

We perceive no error in the ruling of the court. Charles Germy is interested in having the note canceled, and Sarah is likewise interested in having the mortgage canceled. The mortgage is a security for the note, and is signed by both. The transfer and assignment of the note would carry with it all the rights of the mortgage. 'When the note is satisfied, the mortgage is gone. The interests of Charles and Sarah are so united and blended together, that they were properly joined as plaintiffs. (Sections 35, 37 and 89 of the code.) While at common law the misjoinder of any other party as plaintiff with the party or parties whose legal right only had been affected, would have been good cause for demurrer, it is not one of the enumerated causes for demurrer under the code, but perhaps a misjoinder of plaintiffs would, under the code, be within the six enumerated causes for demurrer. But here there was no defect or misjoinder of parties. (Swenson v. Moline Plow Co., 14 Kas. 387.) As the value of the premises purchased was of much less value than the actual money paid, the plaintiffs clearly had the right, under the allegations of the petition, to enjoin the transfer of the note and to a decree for the cancellation of the note and mortgage. If the note and mortgage were without consideration and obtained by fraud, plaintiff in error (defendant in the court below) has no right to their possession, or any valid title or claim to them. A party defrauded as herein alleged, may stand to the bargain and recover damages for the fraud, but if the plaintiff in error is insolvent, an action merely for damages would be a useless remedy — indeed, no remedy at all. The cancellation of the note and mortgage affords about all the practical relief-obtainable in the conditions of the parties. If, however, Sarah Germy has asked less relief than she is entitled to, she is not debarred thereby of all relief.

The judgment of the district court will be affirmed.

All the Justices concurring.