14 Kan. 324 | Kan. | 1875
The question in this case arises on the ruling of the district court sustaining demurrers to the third defense in the answer of Cannon and wife, the plaintiffs in error. The petition was an ordinary petition on a note and mortgage, alleging the execution of the note and mortgage to C. &VG. Cooper & Co., and an indorsement to plaintiff before maturity. The third defense in the answer alleged substantially that at the time of the execution of the note defendant N. B. Cannon executed a chattel mortgage on a portable sawmill situate in the same county as the land as additional security therefor, the filing of the mortgage, and that the same was “still held and owned by C. & G. Cooper & Co.” It also alleged that subsequently thereto Cannon sold and delivered said mill to George W. Spencer and Theodore Kreipe, who still have the possession thereof in the same county; that as part consideration therefor said purchasers agreed to pay this note; that thereafter said Spencer and Theodore Kreipe “made an arrangement with plaintiff to purchase the said note and foreclose the said mortgage for the benefit of the said Spencer and Kreipe;” that the plaintiff knew of the purchase of the mill by Spencer and Theodore Kreipe, and of their agreement to pay this note therefor. There was a prayer that said Spencer and Theodore Kreipe might be made parties, and brought into court, and that on decree the saw-mill be first sold to satisfy the note. To this defense plaintiff below, Conrad Kreipe, demurred. Spencer and Theodore Kreipe were made parties, and they also filed a demurrer to this third defense, in Cannon’s answer. Both demurrers were sustained. Was there error in this? The most that can be gathered from this defense is, that it alleges the existence of two securities, or funds, for the payment of this debt, with an equity in favor of the exhaustion of the other before touching the land; secondly, that it alleges a contract, for a valid consideration, by Spencer ’and Theodore
The judgment will be affirmed.