18 Kan. 518 | Kan. | 1877
The opinion of the court was delivered by
This was an action on three promissory notes. The first of said notes reads as follows:
$200. Westport, Mo., March 20th,-1873.
Sixty days after date, I promise to pay to the order of J. Bernard and William M. Johnson, trustees for Margaret J. Johnson, two hundred dollars, with' interest from date at ten per centum per annum. Yalue received.
M. Greeno.
The other two notes were precisely like this, except that both were payable “twelve months” after date, and the sec
“And the plaintiffs further state, that said promissory notes, all and singular, were given by the defendant to the plaintiffs, as and for a part and parcel of the purchase-money, for the following described premises, situate in Johnson county, state of Kansas, on which defendant now resides, to-wit:” [here follows description of the premises f] “upon which said premises the plaintiffs claim a lien for the said several sums of money and interest; and the plaintiffs ask that such lien be declared, and that the said premises be ordered appraised, advertised, and sold according to law, and that the proceeds of such sale be applied, first, to the payment of the costs, and second, that the residue be applied tó the payment of the judgment to be rendered on said promissory notes, and that the plaintiffs have such other and further relief in equity as the proofs may entitle them to in the premises.”
The defendant’s answer contained a general denial of each of the plaintiff’s causes of action, and then stated that, “The defendant admits that said promissory notes, all and singular, were given as and for part of the purchase-money for the real estate mentioned in plaintiff’s petition; and further says, that plaintiffs sold defendant said real estate mentioned in plaintiff’s petition, and gave defendant his warranty deed therefor, agreeing to warrant and defend the same in the peaceable possession of the defendant forever against all persons whatsoever having or claiming any legal title or interest therein” — and then set up a breach of said warranty, and asked judgment in favor of the defendant and against the plaintiffs for $200. The plaintiffs replied, denying “each and every allegation in said answer contained, except that portion of the answer admitting the execution and delivery of said several notes sued upon by the plaintiffs, and also
The defendant’s answer was afterward by leave of the court withdrawn from the case, and the defendant made no further appearance in the case. An entry was then made by the court, that the defendant was in default, and that the several allegations of the petition would be taken as true against him. Of course judgment should then have been rendered in favor of the plaintiffs, and against the defendant, upon the allegations of the petition. There was really nothing in the case to try, after said answer was withdrawn. But nevertheless, the record shows that the case came on for trial, that the plaintiffs waived a jury, that the case was tried by the court, that “the court having heard the evidence on the part of the plaintiffs, and being well advised in the premises, finds for the plaintiffs, and assesses their damages” at $597.13, the amount of said notes, that said amount is purchase-money for said land described in the plaintiffs’ petition, and that the plaintiffs have a lien on said land for the amount of said purchase-money; and the court then renders a personal judgment in favor of the plaintiffs and against the defendant for said amount, and in addition thereto renders a judgment that said land be sold to satisfy said personal judgment.
The defendant now brings the case to this court, and complains of that portion of said judgment which orders that said land should be sold: He claims that the court below erred in finding that the plaintiffs had a lien for the amount of said notes .on the defendant’s land, and also erred in rendering judgment for the sale of said land. These are the only questions in the case. We think the court below did so err. There is no such thing in this state as a vendor’s lien created by mere operation of law, or by mere force of the rules of equity. (Simpson v. Mundee, 3 Kas. 172; Brown v. Simpson, 4 Kas. 76; and as explanatory of these cases, see Stevens v. Chadwick, 10 Kas. 406; Smith v. Rowland, 13 Kas.
Perhaps before closing this opinion we should say something with reference to the case of Pratt v. Topeka Bank, 12 Kas. 570. In that case a mortgage was executed by the husband alone to secure a portion of the purchase-money for the homestead of himself and wife, and also to secure certain other money. The mortgage however did not show how much of the money was purchase-money, or how much was' other money. Now it might seem from the opinion in that case, that the court intended to hold that the mortgage was void as to the purchase-money as w'ell as to the other money, but'nevertheless that the judgment to be rendered in the case should be made a specific lien upon the. homestead for the purchase-money. Such was not intended however by the court. The court intended to hold, that the mortgage was void only as to that portion of the money it secured which was not a part of the purchase-money, and that it was valid as to the purchase-money, and therefore and for that reason that the judgment for the purchase-money should be made a specific lien on the homestead. In the opinion of that case (page-572,) where it states that the mortgage was “invalid for the purpose of establishing any lien upon the homestead,’7
That portion of the judgment rendered in the present case, which orders a sale of the lands mentioned in such judgment, will be reversed, and the cause will be remanded with the order that said judgment be so modified as to correspond with the views expressed in this opinion.