61 P. 460 | Kan. Ct. App. | 1900
In the year 1886, Mary E. Gano and William Gano, her husband, to secure a note of $1200, due in two years, made, executed and delivered to J. T. Murtagh a mortgage on lots 4 and 5, block 126, in Paola, Miami county, owned by Mary E. Gano, and occupied by herself and husband as a homestead. ■On the 3d day of May, 1887, Mary E. Gano was by the probate court of Miami county adjudged to be a person of unsound mind, and letters of guardianship were duly issued to William Gano, her husband, who gave bond and entered upon the duties of such guardianship. In 1889, the Murtagh mortgage being due and unpaid, William Gano applied to the JarvisConklin Mortgage Trust Company for á loan with which to pay off such mortgage. The application was in writing, and was signed, apparently, by both Mr. and Mrs. Gano. The record does not show that the insanity of Mrs. Gano was disclosed to the company, or that it had any actual knowledge of such insanity and the guardianship of Mr. Gano. Upon this application the company made a loan, which was used in paying off the Murtagh mortgage, the Ganos giving their note, and a mortgage upon the property covered by the Murtagh mortgage, to the company to secure such loan. This note and mortgage were afterward assigned to the defendant in error herein, Lorenzo Martin. On July 8,1895, the note and mortgage being due and unpaid, Martin began foreclosure proceedings in the district court of Miami county. To the petition filed by plaintiff the defendants answered, setting up as their defense the finding of the probate court of Miami county adjudging Mrs. Gano to be a
The judgment appears to have been rendered upon the theory that the note and mortgage given to the Jarvis-Conklin Mortgage Trust Company were void because of the insanity of Mrs. Gano, and that the
We think, also, that the payment of interest by William Gano was sufficient to toll the statute. The new mortgage was void, but equity kept alive the lien of the old mortgage for the benefit of the mortgage company and its assignee, Martin. Equity would require that the defendants be credited with the payments made, upon the ground that “he who seeks equity must do equity.” The payments certainly were made in recognition of an existing obligation. The only obligation existing was that evidenced by the original note and mortgage, and plaintiff had been subrogated to all the rights of the original holder of these ; or, as counsel for plaintiff expressed it, Mar