64 P. 991 | Kan. | 1901
The opinion of the court was delivered by
Counsel for plaintiff in error urges several reasons why the judgment of the court below should be reversed, but they all substantially resolve themselves into two contentions. The first is that Mrs. Jackson should not be held on the note set out in the second cause of action, because the statute of limitations had not been tolled as to her by reason of the payment indorsed thereon; that such payment was made by her husband, not as her agent, and without her knowledge or consent, and that such payment has not been ratified by her. These are all questions of fact which were properly submitted to the jury for its determination. The jury found against the contention of the plaintiff in error, and there is sufficient evidence in the record to uphold and support this finding. It has received the approval of the trial court, and we cannot interfere.
The second contention is that, inasmuch as the statute of limitations had excused Mrs. Jackson from personal liability on the first note, and as the property mortgaged to secure that note was her individual property, therefore no foreclosure could be had of the mortgage which secured that note. We cannot give this contention our approval. This note in question was a joint and several obligation of both defendants. Mrs. Jackson mortgaged her property not only to se
The statute of limitations having run in favor of Mrs. Jackson, she was discharged from personal liability on the note, and therefore she sustained the same relation to the note as though she had never signed it, but this in no way affected her agreement that her property should be subjected to the payment of her husband’s debt evidenced by the note, and the case remained the same as though he only had signed the note when it was made, and both had at that time given a mortgage .to secure it. Plaintiff in error cites in support of his contention the case of Schmucker v. Sibert, 18 Kan. 104, where it was held that, when a note is barred, the mortgage securing the same is also barred. "We most cordially indorse the doctrine laid down in that case. The trouble with its application to the case at bar rests in the fact that here the note is not barred, and that here the debt for which "the mortgage was given has not been discharged. We quote with approval what was said in the case of Schmucker v. Sibert, supra, as follows: “So long as the statute does not bar a recovery on the note, it does not a foreclosure of the mortgage.”
Plaintiff in error further insists that in some way or other, how she does not clearly point out, the question of principal and surety is in this’ case, and cites the case of Hubbard v. Ogden, 22 Kan. 363, in
We here refer to the case of Perry v. Horack, ante, p. 88, 64 Pac. 990, just decided by this court, which is quite analogous to this, for a fuller discussion of this question, only adding the language of the syllabus in that case, “the debt having been kept alive, the mortgage executed to secure its payment may be foreclosed.”
During the progress of the trial plaintiff in error, while a witness, was asked what premises she and her husband occupied as a homestead. The court, upon the objection of the plaintiff, refused to permit the question to be answered. This action of the court is assigned as error. We do not think that the court erred in this ruling. The question itself was vague and indefinite in its form. We hardly think it was warranted by any issues made by the pleadings, and we are further of the opinion that it was wholly immaterial. If it had been shown that the property mortgaged was the homestead of the parties, we cannot see how this fact would be material. It is just as competent for the husband and wife to mortgage their homestead as it is for them to mortgage other real estate, provided the constitutional forms are followed in doing so.
It is further claimed that the judgment rendered is an excessive one, because a judgment was rendered
We find no error in the record, and therefore affirm the judgment of the court below.
